Moses Gitau v Republic [2017] KEHC 3595 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL CASE No. 63 OF 2016

(Being an appeal arising from Kitale Chief Magistrate's Court

Criminal Case No. 1569 of 2015 delivered by  M.I..G.

MorangaPrincipal Magistrate on 9/6/2016)

MOSES GITAU.............................................APPELLANT

VERSUS

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

J U D G M E N T

1. Moses Gitau the “appellant”  herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code.The particulars being that the appellant on the 8th day of February 2015 at Miti Moja Junction in Trans- Nzoia County , jointly with another not before court robbed Joseph Kagera Wangugu of cash Kshs 2000/- and food stuff shopping all valued at Kshs 2,200/- and at the time of such robbery stabbed the said Joseph Kagera Wambugu.

2. He denied the charges and the case proceeded to full hearing, with the prosecution calling three (3) witnesses.

The appellant gave an unsworn statement and called no witnesses. He was convicted  and sentenced to death.

He has appealed against the judgment raising the following grounds of appeal:

i) That the trial magistrate erred in law and fact by convicting the appellant relying on hearsay evidence.

ii) That the trial magistrate erred in law and fact by convicting the appellant without taking note thatthe appellant was arrested after a duration of twoweeks from the day of the alleged incident.

iii) That the investigating officer did not conduct an identification parade in order  for the real culpritto be identified.

iv) That the complainant alleged that the crime was committed at 5. 00 pm and yet no eye witness wassummoned to give evidence before court.

v) That the alleged exhibits were not found in the appellant's possession not were they  broughtbefore court.

vi) That the trail magistrate erred in law and fact by convicting the appellant without taking note that there was an existing grudge between the complainant's family and the appellant.

vii) That the trial magistrate erred in law and fact by rejecting the defence of appellant without any cogent reason hence shifting the burden of proof to the appellant.

3. During  the hearing of the appeal the appellant relied on his written submissions . He submitted that PW1 gave contradictory evidence on how this whole issue started.

Secondly the shirt he was allegedly wearing was not produced as an exhibit. His alleged boss Mr Mwaura did not testify inspite of being indulged by the court.

4. He argued that if indeed PW1 screamed then people  should have come to his rescue. None of such witnesses testified and there was no eye witness who testified. He doubted PW1's claim that he was robbed of shop goods and cash.

5. He further submitted that an Identification parade ought to have  been conducted to enable PW1 identify him .  He claims that they fought and the robbery issue was an after thought to cover up the fight.

6. Mr Kakoi  for the State  opposed the appeal submitting that PW1 was attacked by the appellant and other. He knew the appellant well and identified him as it was day time. He was stabbed severally on the body. That this had been confirmed by medical evidence.

7. He dismissed the appellant's defence as it did not displace the prosecution case.

8. A summary of the evidence on record is that PW1 left Kapkoi Centre on 8th February 2015 at 5 pm. He had gone to the Centre to make some purchases worth Shs 150/-. He walked alone  but there was a youngman walking behind him. At Miti Moja  he came across three men seated, and he only knew one of them who is the appellant. He knew him as a neighbour son of Macharia. They used to call him “ Tao” for Gitau.

9. The appellant and one of the three came to him and the appellant told him

“ Mzee  hebu  simama.”  He snatched  his paper bag containing the purchases  he had made and gave his colleague. He held PW1 and pushed him to a side road. The  rest attacked him, sat on him as they  ransacked his pockets. The appellant took away his Shs 2000/- which was in denominations of Shs 1000/- from his back trouser pockets.

10. One James Kibera screamed loudly. The appellant took a knife and stabbed him on the chest through the shirt. He held onto the appellant. In the process the appellant stabbed him on the left forearm and the back side. A crowd had gathered and he sent James kibera to call his employer,  mr Mwaura who came and took him to hospital as he was  heavily bleeding.  Members of the public chased away his attackers.

11. PW1 was discharged from hospital after a day and a P3 form (Exhibit 1) was later filled. The appellant was later arrested for stealing a hen  and thats when  he was called to  go  and identify him.

He further indicated  that the appellan's  accomplices are at large but even if he saw them he can't identify them because the incident occurred at 6 pm.

He brought to the court the clothes that he was wearing that day i.e black trouser with blood stains (exhibit 3) and a short with a hole  in it (exhibit 2).

He denied having any grudges with the appellant. In cross-examination he said no one came to his rescue during the attack, though people responded to his screams. He denied  fighting the appellant  after he poured  is beer.

12. PW2  Peter maseke the clinical officer who examined PW1 found him to have the following injuries:

- Stab wound on the back neck and front neck

- Cut wound on  right chest.- Cut wound on left upper arm

- Ring and small left hand fingers were injured

- Cut wound on palm.

He classified the injuries as actual bodily harm and produced the P3 form (Exhibit 1)

13. PW3 Corporal Amos Limo  received PW1 On 8th February 2015 at 5. 45 pm. He reported having been  injured  by Moses Gitau who  cut him with a slasher for no reason.  He recorded his statement and he went to hospital. The  suspect went missing for a while later until when a village elder reported that the suspect had stolen his mother's chicken . After investigations it was realised that PW1 had been robbed of goods worth Kshs 2000/-.  They then charged him with robbery with violence.

14. In his defence the appellant gave an unsworn statement.

He stated that on 8th February 2015  5 pm him and others were at Moi Farm. PW1 was also there , and he poured the appellant's spirits and created disturbance. The club owner chased them away and closed the place as  people had become unruly. He added that PW1 , appellant and another disagreed when pw1 poured his drink, and  they   parted ways.   On 6th April 2015 9. 00 pm he was arrested by police officers from Simatwet patrol base for this offence which he denied.

15. This being  a first appeal  this court has the duty to re-evaluate the evidence  and come to its own conclusion, while bearing in mind that it never saw or heard the witnesses.

See Okeno V Republic 1972 EA 32,  Mwangi V Republic [2004] 2 KLR 28,

16.  I have considered the evidence on record, grounds of appeal and the submissions by both parties.

The two issues falling for determination are ;

(i) Whether a robbery  with violence was committed against  the complainant.

(ii) If the answer to issue (I) is in the affirmative, whether the appellant was the perpetrator.

Issue No. (i) Whether a robbery  with violence was committed against the complaint

17. The offence of robbery is defined under Section 296(2) of the Penal Code.  The said offence is said to be proved when a theft is accompanied by either one being armed with any dangerous weapon or  instrument  OR one is in company with one or more other person or persons

OR if immediately before or immediately after the time  of the robbery, he wounds, beats,  strikes or uses any violent to any person.

18.  PW1 has explained how he was robbed of purchases worth Kshs 150/- plus Kshs 2000/- which he had in his trouser pockets.

He had specifically gone to Kapkoi to  make  purchases. He stated  that he was a casual worker at a shamba  and  his salary had delayed. This was to explain how he had  Kshs 2,150/- on himself at that time.

This evidence is very important as “Stealing “  is one of the key elements of a case of robbery with violence.  The appellant has  in his  defence stated that there was  a disagreement and  quarrel between him and PW1 and  not a robbery.

Was anything stolen from PW1 as he alleged?

19. The investigating officer (PW3) told the court that he is the one who received PW1 at the Simatwet patrol base report office on 8th February 2015  at 5. 45 pm. The report he made is found at page  29 lines 15-19 of the record of appeal. It states :

“On 8/2/2015 I was at the report office. I received Joseph Wambugu.  He said he had been injured on the hand by someone known to him as Moses Gitau.  He said he was cut by a slasher. He said he was on his way from the shamba.  He (accused) attacked him for no reason and inflicted cut wounds.”

That is the  full report. He did not mention anything about  money or  purchases.

20. Later in his testimony the same investigating officer (PW3) states at page 30 lines 7-12 of the record of appeal  as follows:

“That is when we conducted a search and later charged him with an assault.  Myself and other officers prepared the charge sheet . It is after we investigated that we realized the complainant was robbed of goods worth 2000. That is why we chose to charge him with Robbery with violence. He is seated in court (identified accused).”

It is not clear when and how this realization came about for them to prefer the present charge.  Was it  after the receipt of the chicken theft report?Indeed if the investigating officer had wanted to confirm if PW1 had any such money and goods on himself he could have interrogated the shopkeeper who allegefly sold him the goods at Kapkoi Centre as well as his employer Mr Mwaura.

I find this element of proof of the existence of the Shs 2000/- and the goods worth  150/- or 200/- missing.

21.  There is however evidence that PW1 was assaulted. The medical evidence by PW2 and even PW3 who received  his report have confirmed that.

I have found the lesser offence  of assault proved.

22.  Since robbery with Violence must have the Stealing and Violence and in this case the stealing is missing my finding is that robbery with Violence contrary to section 296(2) of Penal Code was not proved.

What was proved is the lesser offence of assault.

Issue No. ((ii) If the answer to issue (i) is in the affirmative, whether the appellant was the perpetrator.

-  The time of the occurence of this incident was 5 pm – 6 pm.  The appellant admits having been with pw1 but under different circumstances.

- The Conditions for identification were favourable and PW1 knew the appellant well by name and as a neighbour's son.  He even gave his names to the police. I find that the appellant was properly identified.

23.  Section 179 (1) of Criminal procedure Code provides:

“When a person is charged with an offence consisting of  several particulars, a combination of some of which constitutes a complete minor offence, and the contamination is proved but the  remaining particulars are not proved, he may be convicted of the minor  offence although he was not charged with it.”

Having found that a lesser offence than what was charged was proved I will reduce the  robbery with Violence charge to assault causing actual bodily harm.

24.  I therefore  allow the appeal and set aside both conviction and sentence. In passing sentence i have considered the seriousness of the several injuries inflicted on pw1 .

I hereby convict the appellant for the offence of  causing actual harm  contrary to Section 215 of the Penal Code and sentence him to serve four (4) years  imprisonment from the date of conviction.

Orders accordingly.

Delivered, signed and dated on 29th day of August 2017 at Kitale.

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H. ONG'UDI

JUDGE

In the presence of;

M/s Kagai for Mr. Kakoi for State

Appellant present

Kirong Court Assistant

Court: Judgment delivered in open court.

Right of Appeal explained.

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H. ONG'UDI

JUDGE

29/8/2017