Kenneth Mwiti Kabii v Republic [2020] KEHC 6120 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

HCCRA NO. 14 OF 2018

KENNETH MWITI KABII....................................APPELLANT

VERSUS

REPUBLIC...........................................................................RESPONDENT

(From original conviction and sentence in Criminal  Case No.168 of 2013 in the Principal Magistrate's Court at Chuka Law Courts by M. Sudi on 29th March 2019. )

J U D G  E M E N T

1. KENNETH MWITI KABII the Appellant herein was charged with two  counts of robbery with violence contrary to Section 296(2) of the Penal  Codevide Chuka Chief Magistrate's  Court Criminal Case No. 168/13.   The particulars of the 1st count as per the charge sheet are that on 24th day  of February 2013 at Nkaani village, Kathingithu Sub-Location Kaare  Location within Tharaka Nithi County jointly with others not before court  while  armed with a dangerous weapon namely a kitchen knife did rob MARTIN KIMATHI his cash money of Kshs.10,000 and immediately  before or immediately after did use actual violence by slapping the said Martin on his cheek.

2. In regard to the 2nd count, the particulars are that on the same date at the  same location, the Appellant jointly with others not before court while being  armed with a dangerous weapon namely kitchen knife he robbed (Diana  Gaceri/wife to Martin Kimathi) her mobile phone make Nokia 1110 valued  at Kshs.2500/-.

3. The Appellant denied both counts but upon trial, he was found guilty on  both counts, convicted and sentenced to death.  The Appellant felt aggrieved  and filed this appeal but before I consider the grounds raised, this court will  look at the background of the case against the Appellant at the trial court.

4. The prosecution initially charged the Appellant with another co-accused Elphas Kirimi Kathenya who subsequently jumped bail forcing the  prosecution to proceed with the case against the Appellant by amending the  charge sheet after efforts to trace the 1st accused proved futile.

5. The prosecution's case against the Appellant was hinged on positive identification of the Appellant. Both the complainant (PW1)  testified that he  identified the Appellant by recognition since he lived in the same locality.  He further testified that the presence of  electricity light (bulb) and a torch he  had helped him identify the Appellant and Kirimi among the four member  gang that raided their house on that material night (at around 9. 30 pm).  Both  witnesses (PW1 and PW2) testified that violence and threat to violence was  used in robbing them with PW1 stating that he was robbed of Kshs.10,000/-  while PW2 stating she was robbed of her Nokia Mobile Phone.

6. When placed on his defence the Appellant denied committing the offence  and stated that he was at his house at the material time.  He further pointed  out that nothing was recovered from him.

7. The trial court in its judgment found that the defence of alibi raised was  unfounded and found the evidence tendered against to be sufficient to found  a conviction and sentenced him to serve death  sentence.

8. The Appellant as observed above was dissatisfied with the finding of the  trial court and filed this appeal raising the following seven grounds in his  petition namely;

i) That the learned trial magistrate erred in law and fact by failing to note that the prosecution witnesses gave inconsistent, contradictory and conflicting testimonies.

ii) That the trial court erred by not finding that Section 296(2) was unconstitutional.

iii) That the prosecution's case was not proved beyond reasonable doubt.

iv) That the learned trial magistrate erred by failing to note that the complainant testified that the light at his house was damaged by perpetrators which means there was no light at  the scene.

v) That the trial court erred by failing to note that no exhibit was tendered to support allegations against him.

vi) That his defence was rejected without reasons being given.

vii) That there was no evidence from independent witnesses.

9. In his written submissions, the Appellant has contended that the light at the  scene of crime was not sufficient for positive recognition.  He has pointed  out that PW1 contradicted himself by stating that there was electricity light  and that he had a torch.  He submits that there was no collaborating evidence  to identify him such as  item of clothing, time the complainant and Appellant  were together and whether they may have known each other prior to the  incident.

10. The Appellant has further submitted that this court should consider how far  apart the witness was from the perpetrator and whether there were  identification features that would cause the witness to remember the  perpetrator as well as mental state of the victim at the time.  He relies on the  decision in the case of Toroke -vs- Republic in is contention that a mistake  can happen in both recognition as well as identification.

11. He further submits that there was no prove that the complainant was beaten.   He points out that PW1 did not see him and that the prosecution's case was  full of inconsistencies.

12. The State/Republic has opposed this appeal and has supported both the  conviction and the sentence meted out by the trial court.

13. The Respondent in summary contends that the offence was proved to the  required standard and that the prosecution's witnesses were consistent and  candid.

14. The Respondent faults the Appellant's argument that Section 296(2) of  Penal Codeis unconstitutional stating that the same is still valid as when the  Appellant was charged and when the sentence was passed.

15. On identification, the State points out the fact that the Appellant and the  complainants were known to each other prior to the incident and that when  PW1 opened the door, the security lights were on and had also walked to the  door with a  torch in hand.  The state contends that there was no  indication    that the light was dim to interfere with identification

16. The State has relied on the decision in Oluoch -vs- Republic [1985] eKLR  which emphasized the elements of robbery with violence and Odhiambo & Another -vs- Republic [2005] 2 KLR which also defined the said elements  as, being armed and being in the company of others distinguishing Section  295 from Section 296 of the Penal Code.

17. The Respondent also contends that the defence put forward by the Appellant  was a sham and while it supports conviction, it states that  the Appellant can  only benefit from resentencing after mitigation.

18.  This court has considered this appeal and the opposition the same from the  State.  In my considered view the main issues for determination are basically  2 which are;

(i) Whether identification was positive

(ii) Whether the sentence meted out was constitutional/appropriate.

(i) Identification

19. This court has looked at the  evidence tendered by the Respondent in regard  to identification.  It is clear that the prosecution's case in this regard hinged  on the evidence of a single witness which was the complainant (PW1).  It is  trite that trial courts must treat  with caution cases where the identification is  based on the evidence of a  single witness.  It is obvious in this instance that  though the wife of the complainant  was also robbed at the same  time, she  did not identify anyone as she says she was found in the bedroom and told to  face the wall which she did.  PW1 on the other hand had by then opened the  door to the gang and courtesy of  a security light at the door he stated clearly  that he recognized two of the four members of the  gang.  He identified and  recognized the appellant and one Kirimi. He says that the Appellant beat him  up and sat on  him.  He stated he recognized the two clearly.  This is what he  told the trial court.

" I know the accused we went to the same schools and we live in the    same area.  I was able to identify them with the electric bulb and    torch......."

The above testimony in my view depicted positive identification.  The  Appellant during cross-examination did not challenge the complainant  regarding his identification and recognition and cannot in my view  challenge that fact in this appeal because the evidence tendered on  identification was overwhelming notwithstanding that the evidence was  based on  the evidence of a single witness.  Where evidence of a single  witness is clear candid and strong as was in this case the same is safe and  sufficient to found a conviction.

20. The Appellant has complained that he was not told of his right to recall  witnesses after the prosecution applied and was allowed to amend the charge  sheet on 30th August 2017.  I   have looked at the record of proceedings and  have noted that the amendment by the prosecution was only to remove the  name of the 1st accused because he had absconded and wanted to proceed  with the case against the Appellant only.  The amendment  did not alter in  any significant way the prosecution's case against the Appellant and the Appellant did not make any application to recall any witness.  This court  finds that the amendment did not prejudice the Appellant.  He got the  opportunity and did cross-examine all the witnesses who testified at the  trial.

21. The Appellant has contended there were inconsistencies  in the prosecution's  case but I am unable to find any inconsistency or contradiction in regard to  his identification as one of the perpetrators in the robbery that  took place  that night.  This court finds that having regard to the evidence tendered by  the prosecution, the case against the Appellant was proved to the required  standard in law and I find that his conviction was safe and well founded on  both counts.

Sentence

22. The Appellant has contended that Section 296(2) of the Penal Code is  unconstitutional following the recent supreme Court's decision in the case of Francis Karioko Muruatetu [2017] eKLR.  This court finds that to some  extent the Appellant is right because though the Supreme Court was dealing  with a case of murder, the same principle applies owing to the mandatory  nature of the sentence prescribed by Section 296(2) of the Penal Code.   This court finds that just like the trial court's hands are not tied by Section  204 of the Penal Code in respect to a person found guilty of murder, Section  296(2) of the Penal Codedoes not bar a trial court from exercising  discretion in sentencing notwithstanding the mandatory nature of the  sentence prescribed under Section 296(2).  That mandatory nature is what  was found to be  unconstitutional in Muruatetu's case (supra).  The same   applies mutatis mutandis to the provision of Section 296 (2) of the Criminal  Procedure Code.

23. This court while finding that the trial court's hands were not tied when  meting out the death sentence, notes that the Appellant never did himself any  favours by choosing to remain silent and refusing to mitigate.  He has not  stated in this appeal why he took that option.  He has only complained that  the other sentence should have been held in abeyance.  It is trite that if an  accused person commits a series of offence  at the same time in a single act  or transaction, a concurrent sentence is imposed and the trial court  in this instance decided that the 2 (death) sentence would run concurrently.   However owing to the nature of the sentence I agree with the Appellant that  the other sentence should have been held in abeyance which really does not  matter much because the attendant result is one and the same (death).

This court has considered the severity of the sentence and the fact that  the  Appellant was a 1st offender.  The trial court in light of Muruatetu should  have handed any other sentence other than death sentence which I find to be   a little bit harsh.

In the premises this court for the aforesaid reasons upholds the conviction on  both counts but reverses the death sentences.  In its place the Appellant is  hereby sentenced to serve 20 years imprisonment  each  of the counts. Both sentences to run concurrently less the period the Appellant has been in  custody when his bond was cancelled.  This appeal therefore succeeds only to that extent.

Dated, signed and delivered via skype this 28th day of  April 2020.

R .K. LIMO

JUDGE

28/4/2020

Judgement delivered via skype in presence of Momanyi for ODPP and the  accused person.

R.K. LIMO

JUDGE

28/4/2020