Norman Kepha Oracha v Republic [2014] KECA 44 (KLR)

IN THE COURT OF APPEAL AT KISUMU

(Coram: ONYANGO OTIENO, KIAGE, & KANTAI, JJA)

CRIMINAL  APPEAL NO. 280 OF 2010

BETWEEN

NORMAN KEPHA ORACHA ..............................................APPELLANT

AND

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

(An appeal from a judgment of the High Court at Kisumu before (Hon. Justices  J. R.

Karanja and A. Aroni) dated 8th June, 2010

in

H.CR.A. NO. 170 OF 2009)

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JUDGMENT OF THE COURT

The appellant NORMAN KEPHA  ORACHAwas  tried  and  convicted  by  the Senior  Principal   Magistrate   at  Kisumu   on  four  counts   of  robbery   with  violence contrary to Section 296(2) of the Penal Code in connection with a robbery that occurred on 11th March 2008 at Neighbours Pub in Kisumu City.  Various items were stolen from the four victims of the robbery in which one of them, Dr, John Opondo Onyango, was shot dead. The appellant was said to be in the company of others not before the court and  armed  with  dangerous weapons namely   pistols, pangas and  rungus. The appellant was duly sentenced to death on all counts but with the last three being held in abeyance.

The appellant was not satisfied and filed an appeal at the High Court at Kisumu. His appeal  was heard  in full and  the learned  Judges of the High Court  (J. R. Karanja and  A. Aroni JJ.) dismissed  it in entirety  in a judgment  delivered on 8th June 2010 thus provoking this appeal.

The appellant's grievance  are captured in the Memorandum of Appeal filed by the firm of S. M. Onyango &  Associates, Advocates  which raises four succinct grounds of appeal, namely:-

1.  That the superior court erred in law in failing to appreciate that the evidence on identification was so weak as to be insufficient in being a basis for a sound identification.

2.  That the superior court lowered the standard of proof in regards to identification to the prejudice of the Appellant.

3.   The superior court erred in law in failing to analyze the evidence as a whole in arriving at its conclusions and findings.

4.  The superior court shifted the burden of proof."

The fulcrum on which the fate of the appellant's appeal turns is that of identification and Mr.  lndimuli, the  appellant's learned   counsel  did  well  to  condense   the  four grounds into that single issue.   Counsel's submission on the issue, quite simply put is that the conditions and  circumstances obtaining at the  time  of the  incident  did  not conduce  to  a  positive  identification  of  the  appellant at  the  scene  free  from   the possibility of error.  He weaved this submission with the argument that there were such glaring contradictions and inconsistencies in the identification evidence tendered by prosecution that the learned Judges' ought  to have quashed the appellant's conviction and their failure to do so was indicative of a failure to forthfully  discharge their duty as a first appellate duty  to reevaluate and reanalyze  the evidence  before arriving at their own independent conclusions.

The evidence as was presented by the prosecution was that on the material night, some five friends were at a Bar called Westway in Kisumu in the small hours of the morning between   1. 00  and   2. 00  a.m. drinking beer.  They   were   FREDRICK NYAWANA (PW1), SAMUEL  NYABINDA (PW2), MIRIAMNYAKUNDI (PW4), Dr. OPONDO and  an  unnamed lady.    They were being  served  and  attended to  by  a waitress named  JOSEPHINE ABONDO (PW3).  At 2. 00a.m or thereabouts, a young man entered the bar and sought to purchase coke soda in a plastic container.  PW3 told him that they did not stock that kind of soda whereupon the young man left.

Barely five minutes later, the little drinking party was disrupted by a sudden command that the patrons  lie down.  The command was from a gun-totting young man  claiming  to  be  a  policeman. He  had  walked   into  the  bar  followed   shortly afterwards by  three  other  young   men,  his  accomplices. The gang ransacked the patrons' pockets which they emptied of money and other valuables. They also relieved them of their watches and cell-phones.    For food measure they helped  themselves to some six tusker beer cans.

When the command went out for the patrons to lie down, they all complied and this saved their lives.   Dr. Opondo, on the other hand, quested the order wondering which police officer was disturbing the revellers at that hour.   By way of response the gun wielding gangster twice pulled the trigger from point  blank range.   Dr. Opondo fell from the bar stool.  Those shots proved fatal.  PW2 who first turned  to see who had commanded them  to lie down  was also shot  in the mouth  and  lost three  teeth  thus escaping death by the skin of his teeth, literally.

The incident took but a few minutes after which the robbers exited the bar.  The serving patrons   put  Dr. Opondo in  PW1's  car  and  drove  him  to  the  Agha  Khan hospital where he was pronounced dead on arrival.

The arrest of the appellant was apparently instigated by an informers' report that he was involved  in the robbery  in question. Police officers including P.C EVANSMACHOKA  (PW 5) and  P.C FELIX KIMUTAI (PW 9)  proceeded  to  the Mamba  Hotel on Moscow Road where  they arrested  him.   They ordered him to take them to his house which they searched before taking with them some safari boots as well as some brown and black shoes before taking him into custody. The shoes were taken on account  of the police having  been told that one of the suspects was wearing safari  boots.   The evidence regarding the shoes was however found by the learned Judges to be shaky and not capable of being relied on for a conviction and we shall say no more on them.

The great sticking print of this appeal, as was in both courts below is whether the appellant is the trigger happy  gangster  who  walked  into the bar, ordered the patrons to lie prostrate and shot two of them, are fatally.  Both prior Courts found  that he was, and  the question  we must determine is whether  in all circumstances of the case, there was  a  credible  basis  for  so  finding. We  embark   on  the  enquiring with  a  keen cognizance of the  fact  that  as  a second  appellate court,  we  are  extremely  slow to  interfere with  the  concurrent findings  of fact  by  the  trial  and  first  appellate courts considering that  appeals to us are, by dint  of Section 361 of the Criminal  Procedure Code, confined to matters of law only and exclude matters of fact. See also NJOROGE -VS- REPUBLIC [1982] KLR 388. This Court does have a greater leeway when sitting on a second appeal  to interrogate the factual basis for the conclusion of law arrived at when at issue is the question of identification. This is because identification is a matter of mixed  law  and  fact as  has  been  held  by  this Court  on  numerous occasions.  In BONIFACE   OKEYO  -VS- REPUBLIC  [2001] eKLR,  for  instance,  Chief  Justice Chunga, sitting with Tunoi  and Shah JJA (as they were then), put it thus, and it bears repeating:

"The law on identification cannot  be in  dispute in  our courts.   The evidence must be scrutinized carefully and the court must be satisfied that identification is positive  and  free from the  possibility  of error.   All surrounding circumstances, particularly circumstances under which identification was made must be scrupulously considered. In this appeal we have considered all [these] matters.... We are mindful of the fact that we are dealing with a Second appeal and, as such, we must not re-open issues related to facts.  Nevertheless, identification is always an issue of mixed law and fact. Where, therefore, a submission is more that the lower courts have failed to fully evaluate [the] circumstances and conditions of identification, we think such submission leads to an issue of law which would justify our intervention even in a second appeal such as this."

The case for  our  intervention, strong  enough  when  identification is raised,  is strengthened in our view, when, as here, it is tied to the twin  submission that the first appellate court failed in its duty of re-hearing the case but always with the rider that it lacks the advantage of observing the witnesses  giving live testimony.   With that duty on the part of the court comes a concomitant and legitimate expectation on the part of an appellant that the court would discharge that duty.   This Court has pronounced on this before including in NJOROGE -VS- REPUBLIC [1987] KLR 19 where it made two holdings germane to the point under discussion:

1.   It is the duty of the first  appellate court  to remember  that  the  parties  are entitled,  as  well  on  questions of fact  as  a  question of law,  to  demand a decision  of the  court  and  that  court  cannot  excuse  itself from  the  task  of weighing conflicting  evidence  and drawing  its own  inferences and conclusions.  The court should however bear in mind that it has neither seen nor heard the witnesses and it should make due allowance in that respect.

2.  If the first appellate court fails to carry out that duty, it becomes a matter of law on second appeal whether there was any evidence to support the conviction.   Misdirection's and non-directions on material points are matters of law.

Bearing those principles in mind, we have on consideration of the entire  record come  to the unhesitating conclusion  that  the identification evidence  presented against the appellant was not free from the possibility  of error and does not lend any assurance that the conviction, based solely on that identification evidence, was safe.  Whereas  PW 1 and PW3 stated  that the appellant is the same young man who had earlier asked to buy soda  who  returned some  five minutes  or so later,  gun  in hand,  there  are co-existing circumstances that militate against  any great confidence that their identification of the shooter, a  total  stranger   to  them,  was  iron-clad. Moreover,  there  are  some  salient differences  and inconsistencies in the evidence  of these two witnesses  which  go to cast doubt on  the  accuracy  of their  accounts. First PW1.  Even though  he says  he saw  a young man come and  ask for soda in plastic bottles who was black, lean, of moderate height  and  wearing black boots," which  to our  mind sounds quite  a generic and  non- distinguishing description, there  is no  indication as to how  long  PW1  observed  the young man.  We also note that the brief conversation the young man had was with PW3 at the counter, and not with PW1 and the other patrons inside the bar.  When the young man  returned, according to PW1,  it was to order  everyone  to lie down  an order  with which  PW1  complied  meaning  there was no ample  time to further  and  better  observe the gunman. It is also noteworthy that PW1 had been drinking alcohol for a number of hours before the robbery incident occurred.

As for PW 3, she was the waitress who first spoke to the young man who entered wanting to buy soda.  Her account was to the effect that five minutes later, "the young man returned and held a customer who was standing at the door and pointed a pistol at the customers to lie down".   The customer allegedly taken captive was neither named nor called as a witness. On this point there is a huge variance between the account of PW3 and that of PW1 as well as that of PW4, the other eye witness to which we shall return. PW3 did not get much time to observe the gun-wielding gangster  for the moment the order to lie down issued, in her own words;

?I retreated into the counter and locked its door and ran to the staff toilet behind the bar.  While there I heard 2 gunshots. I locked myself until when the owner of [the] bar raised alarm. I found Dr. Opondo had been shot dead."

It is highly  doubtful, from  our  own  consideration of the record,  that  there  was sufficient  opportunity for  PW3 to have  properly observed  the intruder sufficiently  to lend  assurance that  the  appellant was  the  "short and  slightly  black" without any peculiar mark, gangster.

Added to that state of uncertainty about the appellant's identification is the fact that PW2, who was with PW1 in the bar, was categorical that he was not able to identify the attackers.  In fact, he  described  the  robbery  incident  as "an  ambush" and  made  no reference  whatsoever to the appellant as the person  who shot him. All PW2 could say was the rather unhelpfull "He was 5" and some feet."

Finally there was the eye witness testimony of PW4 which is fully exonerative  of the appellant. She testified in relevant part, as follows;

"At 2. 00 a.m a young man entered the bar and asked for coke in plastic bottles and he was told it was not available. He left and another in a black jacket entered wearing black jacket and fired a bullet. We were ordered by others to lie down and produce phones and money. We obeye ....... I was able to identify the young man who entered first and asked for soda. He is in Court-Accused 1 [the appellant] identified..... The one who entered and started shooting wore black jacket and I was not able to identify him due to shock and because he shot and ordered us to lie down."

Later on when cross-examined by the appellant's then advocate, PW4 was emphatic that  PW1 was  not  the  gangster who  wore  a black  jacket and  was  not  the  one  who carried a pistol.

Given  that  state  of  the  evidence,  we  find  the  learned   Judges' treatment of  the evidence erroneous in material respects.  Said the Judges:-

"There is no doubt from the evidence before court that robbery with violence took place where patrons were robbed with one [of] them being fatally wounded. It is also true that the evidence adduced by the prosecution had some trace of confusion as to whether the person who went out is the one who returned wearing a black jacket. However PW1, PW3 and PW4 all identify the appellant as the one who came back wielding a pistol. The confusion by PW4 does not in our view go to the root of the evidence as to water down the same."

We respectfully disagree.   As we have stated, PW4 was categorical and firm that the appellant was not the gun-wielding robber.  It was a manifest error for the learned Judges to hold and proceed from the premise  that she said he was.  As to the admitted confusion, we are unprepared to minimize it and term it, as did the learned Judges, as merely a "trace".  We think it was not mere confusion, but rather a major contradiction. PW4's evidence  actually  favoured the  appellant and  taken  with  the  totality  of  the evidence   adduced and  the  circumstances surrounding  the  robbery,  amounted to  a reasonable doubt. At any rate, it is confusion or contradiction that should have been resolved  in favour of the appellant.

We are not satisfied that the two courts below subjected the evidence of visual identification under  the far from  ideal circumstances obtaining to the test of greatest care propounded by this Court and its predecessor  in a long line of authorities including ABDALLA BIN WENDO  -VS-  R 20 EACA 166;    RORIA  -VS- REPUBLIC [1967] EA 583 and NJOROGE -VS-  REPUBLIC (Supra).  We apprehend that this is  a  case  where  PW1  and  PW2  may  well  have  been  honest  but  mistaken  in believing  that  the appellant is the same  young  man  who  returned to the  bar gun in hand.   It indeed  presents  a classic case of possible unconscious transference  where  the witnesses, in  particular PW1 and  PW3 possibly  mistook  the  robber-with-gun for  the appellant who had been to the bar previously.  See SILAS  MUNENEMWAURA  -VS­ REPUBLIC [1999) eKLR;SHADRACKMUTETIMAWEU -VS- REPUBLIC[2001]eKLR.  There was also no evidence that the first young man was in company with the man identified by PW4 as the one who  pulled  the trigger. The risks of a miscarriage of justice in a case based wholly on visual identification as have been recognized by courts for long time before and since the Englishof R -vs-  TURNBULL [1976] 3 ALL ER 549 were very present  in the instant  case and  we come to the conclusion  that his conviction was not safe and cannot be allowed to stand.

In the result we allow the appeal, quash the conviction  and  set aside the sentence.

The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Dated and delivered at Kisumu this 4th day of July 2014

J. W. ONYANGO OTIENO

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JUDGE OF APPEAL

P.O. KIAGE

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JUDGE OF APPEAL

S OLE KANTAI

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JUDGE OF APPEAL

I certify that this is a  true copy of the original

DEPUTY REGISTRAR