Nabochi Ateku v Republic [2014] KECA 364 (KLR)

INTHE COURT  OF APPEAL AT NAIROBI

(CORAM:WAKI, MWERA & MURGOR, JJ.A)

CRIMINAL APPEAL NO.93 OF 2014

BETWEEN

NABOCHIATEKU………….......…………..……APPELLANT

AND

REPUBLIC.........................……..……....... RESPONDENT

(Appeal froma Judgment of the High Court of Kenya t Nairobi

(Mbogholi& Achode, JJ.) dated 8thMarch,2012

in

HC.CR.A.440OF 2007)

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JUDGMENT OF THE COURT

The appellant, Nabochi Ateku, was  charged in the  Chief Magistrate’s Court at Kibera  with the  offence of robbery with violence contrary to Section 296(2) of the  Penal Code in that on 16th February, 2006, at Kangemi Nairobi, jointly with others not before court, while armed with dangerous weapons, namely  pangas, he  robbed Mula   Musinde Mulangeof a  TV  set L.G  by make, a mobile phone (Nokia) all worth Sh.14,200/=.  During the  incident the robbers used  violence on  the  said  Mula  Mulange.  After trial, the  learned magistrate found the  appellant guilty and  sentenced him  to  suffer death as by law mandated.

In  finding the  appellant guilty the  learned trial magistrate noted that he had  been  identified at the  time of the  robbery, which took  place  at night, by  the   complainant  (PW1)  and  his  wife,  Rose  Umochi   Mulange(PW2). They  had  been  woken up  by  the  robbers; they put  on  electric light in  their one-roomed  house.      Thus   they  saw   and   identified,  nay,   recognized the appellant there.  Then  as the  robbers armed with pangas  left with the  stolen property, the  two  were  again  able  to see and recognize the  appellant through the  security light outside.  Their  neighbor, NormanLunalo(PW3),  through his  window, also  recognized the  appellant through the  security light.   Both PW1 and  2 had  testified that on several occasions earlier, they had  seen  the appellant visiting a neighbor called Mwangi.  The witnesses had  added that the  appellant bore  a scar  on his forehead.  Thus the  learned trial magistrate was  satisfied  beyond any   reasonable doubt  that  the   appellant, who  was represented at  the   trial, had   been   positively identified  at  the   scene   by recognition so his alibi defence had no merit.

Being  dissatisfied with the  trial court’s decision the  appellant moved to the High Court (Ochieng, Achode,JJ.) on appeal.  The learned judges re- evaluated the  whole  evidence and dismissed the  four grounds put  forth.  The grounds were  that identification was  not free of error; evidence was contradictory; proof was  not up  to  the  required standard and  the  defence tendered had not been  well  appreciated.

Again,  the  appellant was  aggrieved by  that decision.  He thus  lodged this   appeal before  us  by  presenting  six  grounds  in  the   memorandum  of appeal.    Mr.  Elvis  Obok,   learned  counsel for  the   appellant adopted the grounds.  He abandoned grounds 1 and 6 and argued the  rest on three broad bases namely, recognition, contradictory evidence and failure to present vital witnesses to  testify contrary to  Section 150  of the  Criminal Procedure Code. The appeal was opposed by  Mr. Njagi Nderitu, Senior  Assistant Director of Public  Prosecutions.

Mr.Oboktold  us that the  robbery took  place  at night in  the  room  of the  complainant and his wife (PW1 and PW2).  It lasted less than  10 minutes. He  observed that the  two  witnesses told  the  learned trial magistrate that they saw the  appellant in the  electric light and recognized him  by the  scar on his  forehead and  that they had  seen  and  known him  in  the  past when  he came  visiting one  Mwangi, their neighbour.   Counsel  urged us to  find that that evidence was not sufficient to sustain recognition and  to be relied on to convict, particularly considering that the  said  Mwangiwas not presented to testify.  He further submitted that the  husband and wife did  not state in their report to  the  police that they had  recognized the  appellant at the  scene  or that he  bore  a scar  on  his  forehead.  It was  not sufficient therefore for the two  witnesses to  only  describe the  clothes – a  black  jacket and  trousers - which the  appellant wore  on the  material night, without adding any  physical description about him.

As for the  scar  on the  forehead, we were  told  that the  appellant stated in  his  defence that  he  sustained  it after the  robbery on  the  day  he  was arrested and  roughed up by members on the  public.  He never had  it before. That   he   even   denied  visiting  one,   Mwangi.     Accordingly,  Mr.Obokcontinued, had  the  learned Judges  re-evaluated all  the  evidence before the trial  court, they could   have   concluded that it did  not  suffice to  found  a conviction.

Briefly on the  ground of contradictory evidence, Mr.Obokurged us to note  that while the  complainant (PW1) claimed that the  mobile phone stolen during the  robbery belonged to him,  his wife (PW2) told  the  lower court that she was the  one who bought it.  Thus ownership of that phone fell in doubt.

On his part, Mr. Nderitubegan by  pointing out  that Section 137(d) of the  Criminal Procedure  Code  alluded to  in  ground 2 in  the  memorandum of appeal,   was   not  relevant  here    since    that   provision  concerned  plea- bargaining, a subject that did  not feature in the  proceedings herein.  Moving to   the   ground  of  recognition,  counsel posited  that  the   evidence of  the complainant and  his  wife (PW1  and  PW2)  supported each  other.  They  saw the  appellant in  the  house  as he  severed the  TV wires.  There  was  electric light on.   They  recognized him  as a person who  had  in the  past visited one Mwangi, their neighbor.  He had  a scar  on  his  face and  when  the  robbers were  leaving the  two  witnesses again  saw him  well  through the  security light in the  compound.  Both  the  courts below made  a concurrent finding that the

2  witnesses recognized the  appellant at the  scene  and  that finding should not be faulted.

Mr. Nderitucontinued that it was no matter the  number for witnesses that  testified.   There   was  no  requirement in  law  to  present  a  particular number of witnesses to prove a fact.  In his view,  those  that the  prosecution herein presented proved the  charge laid  and that sufficed. While  referring to one  Mwangi, whom it was said  was visited by the  appellant, counsel told  us that  he   was   not  a  necessary  witness  and   in   any   event  PC  WycliffeMukonyole(PW5,  Investigating Officer) testified that he  met this  Mwangi. Mwangidid not want  to talk to PW5 or give  him  a statement.

Mr. Nderituconcluded that the  learned judges properly re-evaluated the  evidence as recorded, including the  defence and  dismissed the  appeal. The  appellant was  not identified in  the  dock  and  he  had  his  scar  on  the forehead before and  not after the  robbery.  It was  seen  by  PW1 and  PW2 at the  scene.    Mr.Obokmade  a brief response reiterating that identification was  through a scar  and  not recognition.  He also  emphasized that Mwangiwas non-existent.

This being a second appeal we are bound by the  provisions of Section361(1)of the Criminal Procedure Codeas set out  in many past decisions of this  court, including Njorogevs  Republic [1982]  KLR 388wherein it was stated that:

“On    a   second    appeal,  the   Court  of   Appeal   is   only concerned with  points of  law.   On  such  an  appeal, the Court was  bound  by the concurrent findings of fact  made by  the  lower courts, unless   those findings were  shown not to be based on evidence.”

Beginning with the  ground of recognition raised by  the  appellant, we are  not in doubt that where the  visual identification of an accused person is not so  positive as  to  link  him  to  an  alleged offence, want  of proof of that aspect may  entitle him  to an acquittal if it be the  only  aspect.  Recognition is linked to  identification for a  witness who  knew   or  had  seen  the  accused person before, meaning that it was not for the  first time that the  witness saw the   suspect/accused  person  during   the   alleged  offence.     Here   the   3 witnesses (PW1,  PW2 and  PW3)  told  the  learned trial magistrate that they had  seen  and  therefore known the  appellant before the  night of the  robbery, when  he used  to visit one  Mwangi,their neighbour.  So when  they saw him among the  robbers that night in their plot they recognized him.

In  the   case  of  Anjononi&  Others  vs  Republic [1980]  KLR  56, where the  appellants attacked and  robbed a certain family at night and  then escaped.  There  was evidence that the  robbers had been  seen and identified. The couple testified that they recognized the  robbers whom they knew  very well   previously.     The   appellants  were   convicted  and   their  appeal  was dismissed  by   the   High   Court.     When   they  came   before  this   Court,  still impeaching the  finding of identification, this  Court delivered itself thus:

“The proper identificationof robbers is always important in  a  case  of  capital robbery, emphatically so  in  a  case like  the present one  ---  Being  night time the conditions of identification of the robbers in this case  were not favourable.  This was  however, a case  of recognition, not identification, of  assailants; recognition of  an  assailant is  more   satisfactory,  more   assuring, and  more   reliable than  identification  of   a   stranger  because it  depends upon  the  personal knowledge of  the assailant in  some form  or another.”

The  Court  went on  to  state how  the  couple in  the  Anjononicase  knew  the appellants before and  how  they had  seen  them well  in  torch light thereby obviating any mistake of identification.

In the  present appeal the  principal witnesses (PW1, PW2 and PW3) saw the  appellant in the  electricity-lit room  and in the  security light outside. They knew  him  before when  they saw him  visiting one  Mwangi, a neighbour.  He had  a scar  on  the  forehead which PW1 and  PW2 testified on  and  were  not cross-examined on  whether the  scar  was  there before or  after the  robbery. The trial court said this  about identification/recognition of the  appellant:

“The question thatnow  begs  (an) answer is whether the identification  of  the  accused person  was   beyond reasonable doubt.   Although it  was  at   night, it  is  the evidence of PW1, PW2  and  PW3  that there was  sufficient light  which    could    make  them  positively  identify  the accused person.   They  also  described the clothes he  was wearing.  The  light was  so bright to the extent that they were  able   to  see   the  scar   which   was   on  the  accused person’s forehead.  I am  therefore satisfied that there is no  possibility  of   an   error  in   the  identification  of   the accused person.   Therefore the accused person’s alibi  is false  and  made-up story.”

To be precise, it was  only  PW1 and  PW2 who  spoke  of the  scar  while PW3’s evidence mainly focused on seeing the  appellant in the  security light.

And just before the  quotation just made  immediately herein-above, the learned trial magistrate had  said  the  following about the  3 witnesses (PW1, PW2, PW3) in connection with the  robbery:

“The complainantsaid  that he  was  able  to recognize the accused person whom  she  (sic)  had  seen  before.  He  was aided by security light in order to identify the accused person.  He  said  he used  there before whenever he came to visit a  neighbor called Mwangi.   This  means that  he had  seen  him  several times prior to the material night.”(underlining added.)

As for PW2:

“…she   was  also  able   to identify (and/or recognize) the accused whom  she  knew physically.  She  used  to see  him visiting a neighbour who lived in their plot.”

And  for PW3 (Norman Lunalo) who  lived opposite PW1 and  PW2, he  woke up when  they raised alarm and looked through the  window.  He saw a person holding a panga and facing his direction:

“That personwas  facing his  direction and  he  recognized him   as  the  accused person.    He  had   seen   him   two(2) times coming to visit a neighbour in that plot. … when  he reached outside, he  saw  the accused person disappearing…”

The learned trial magistrate rated the  evidence of PW1, PW2 and  PW3 as consistent regarding the  identification or  recognition of the  appellant in the  electric light.

For its part, the  High  Court said as follows after reviewing the  evidence of the  3 witnesses:

“The appellantwas  not a total stranger to PW1, PW2  or PW3.  And on the material day, he did  not cover  his face. Also  there was  sufficient lighting inside and  outside thehouse.Those  circumstances were conducive for  positive identification.”

And:

“WhenPW1  reported the incident to the police, he  told them that he recognized one of the robbers.”

In this  connection PC Mukonyole(PW5) told  the  lower court:

“The complainant toldme  that he  identified the accused person since  he used  to visit his neighbour.”

This neighbour was no doubt the  said  Mwangi, whom PW5 spoke  of in cross- examination:

“The  accused  personused   to  visit  the  house   of   one Mwangi.  I met with Mwangi in  the plot in  question.   He was  outside his house.  He  did  not want to talk with me. He refused to record a statement.”

From  the  foregoing, the  two  grounds of recognition and  failure to call  a vital witness have  been  exhausted.  There  was sufficient evidence regarding recognition of the  appellant at the  scene  where there was  electricity light. PW1, PW2 and  PW3 recognized him.   There  was no error in this  and  both  the trial as well  as the  first appellate Court, made  a concurrent finding on  this aspect.    We  see  no  reason to  disturb the   same.   There   was  evidence  in support thereof.  As to omitting to call vital witnesses, it was not a prejudicial omission to  leave  Mwangiand  not call  him  as a witness.  There  is no  law requiring the  prosecution to call  any  and  all who  would pass as witnesses so long  as it adduces sufficient evidence to prove its case.   Mwangiexisted and he  declined  to   talk   to   the   investigating  officer,  PW5,  or  even   record  a statement.   He  was  not a  vital  witness to  the   prosecution  case  and  the appellant, who  is under no duty to prove anything, was at liberty to summon him  as a witness.

Accordingly,  we  find  no  merit  in  the   2  foregoing  grounds  and   we dismiss them.

The  third  ground was  what Mr.Obokreferred  to  as  contradictory evidence as  between PW1 and  PW2 regarding the  ownership of the  stolen mobile  phone.  He   did   not  demonstrate  in   what  way   this   ground  had substance  impacting on  his  client’s  appeal, or  how  the  ownership of the phone prejudiced his  client.  The phone was  one  of the  items stolen by  the robbers from the  house  of PW1 and PW2.  This ground too must fail.

All in all,  we find no merit in this  appeal which we hereby dismiss in its entirety.

Datedand  Delivered at  Nairobi this 3rdday  of  October,2014

P. N.WAKI

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JUDGE OF APPEAL

J. W.MWERA

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JUDGE OF APPEAL

A.K. MURGOR

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JUDGE OF APPEAL

I certify that this  is a true copy  of the  original.

DEPUTY REGISTRAR