Patrick Munyangori Ombati v Republic [2015] KECA 562 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  MUSINGA, GATEMBU & MURGOR, JJ.A)

CRIMINAL APPEAL NO. 242 OF 2010

BETWEEN

PATRICK MUNYANGORI OMBATI …… APPELLANT

AND

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

(Appeal from a Judgment of the High Court of Kenya at Kakamega (Kimaru & Thuranira, JJ) dated 7th December, 2011

in

HCCR NO. 226 OF 2002)

***********************

JUDGMENT OF THE COURT

On 8th September 2002, the Chief Magistrate at   Kakamega convicted the appellant, Peter Munyangori        Ombati for the offence of robbery with violence. He  was sentenced to death. He appealed to the High  Court on the grounds that the evidence on his identification was insufficient to sustain the conviction and that the prosecution did not prove its case to the  required standard. The High Court rejected his appeal holding that:

“Upon re-evaluation of the evidence that was adduced, it was clear to the court that the prosecution indeed established to the required standard of proof beyond any reasonable doubt that the appellant was identified at the scene of the robbery. In our considered view, that evidence was of recognition. The complainant and PW2 knew the appellant prior to the robbery incident. They knew him even by name. They identified him by name at the scene of the robbery.  No evidence was adduced to suggest that there could have existed a grudge between the appellant and the complainant that could have motivated the complainant to falsely accuse the appellant of the crime. The ingredient (sic) to establish the charge of robbery with violence contrary to Section 296(2) of the Penal Code was proved.  The appellant, in company of others, while armed with dangerous and offensive weapons, robbed the complainant of Kshs.3,000/= cash, his identity card and his Post bank book, and in the course of the robbery injured the complainant.  The alibi defence was rightly rejected by the trial court as having no strength to dent the otherwise strong evident (sic) adduced by the prosecution.  We too are of the same opinion.”

In this second appeal, learned counsel for the appellant, Mr. Onyango Jamsumbah, referred to the memoranda  of appeal and submitted that both lower courts failed  to appreciate that the appellant was tried and   convicted without a charge sheet; that accordingly the appellant   was not informed in sufficient detail of the   charge in   breach of Article 50(2)(a)(c) of the   Constitution of Kenya; that the appellant’s identification was improper and did not accord with the law; and that the High Court failed to carefully  evaluate the evidence for if it had done so it would  have found that the prosecution did not prove its case against the appellant   to the required standard. For these reasons, Mr Jamsumbah urged us to allow the appeal.

On his part, L. K. Sirtuy, Learned Principal Prosecution  Counsel, when opposing the appeal submitted that as  the second appellate court, our mandate is confined to matters of law; that the High Court did properly    analyze the evidence and concluded that the conviction was well founded on evidence of identification by      recognition by two witnesses who positively identified  the appellant. In that regard counsel invited us to have         regard to the case of Anjononi vs. Republic (1980)KLR 59 and to uphold the conviction.

Regarding the complaint that the appellant was tried and convicted without a charge sheet, counsel submitted that there can be no doubt that the charge sheet must have been plucked out from the file as it is clear  from both judgments of the lower courts that the  particulars of the charge were read to the appellant       and that he pleaded thereto. With that, Mr. Sirtuy urged us to dismiss the appeal.

The facts as established by the lower courts against  which those submissions were canvassed before us are    that on 13th April 2002 at about 10. 00pm, James Mwangi Gitau (PW2), a taxi operator in Kakamega       town, was in the course of his business ferrying a  passenger in his Datsun saloon vehicle to Scheme      Estate. Whilst driving into the estate, the headlights of his vehicle illuminated “people who had grabbed someone. The people disbursed (sic) leaving two struggling.” On moving nearer, he found the appellant, whom he  knew by the name “Mbararo” and called out his name   whereupon the appellant “took off leaving [the]     complainant.” Unknown to him, PW 2 had stumbled   upon a robbery in progress.

The complainant, Samuel Makawa Kuloba (PW1),   testified that he was on his way home in Scheme Estate in Kakamega town on 13th April 2002 at about  10. 00pm when he was accosted by assailants; some of the assailants grabbed him from behind while others grabbed him by the side; two men were standing next    to him holding knives; the attackers took his pullover  that he was wearing, his Identity Card, his post bank  book and Kshs. 3,000. 00 in cash. One of the assailants struggled to remove his trousers. He grabbed one of  the attackers with whom he struggled on the ground.  At that point a taxi stopped, and aided by the lights from the taxi, he realized that he knew the attacker he  was struggling with on the ground; he knew him by his nickname   “Mbararo”. The taxi man called out the name Mbararo upon which the appellant ran away. The  taxi man who had a passenger in his vehicle went  away. Subsequently, PW1 assisted the police in pointing out   the appellant to the police at a ‘Miti Dawa’ rendezvous where the appellant attempted to run  away but was apprehended.

Police constable Hezron Mokenye (PW3) stated that    he was at Kakamega Police Station on 14th April 2002         when the officer in charge of that station requested  him to accompany PW1 to go arrest a suspect; PW1         directed him to a hotel in Scheme Estate where they found the appellant taking ‘Miti ni Dawa’ liquor and   escorted him to his house where he conducted a  search before taking him to the police station after which he was subsequently charged.

Ayienda Sandifin (PW4), a clinical officer at Kakamega   Provincial Hospital, testified that he examined PW1 at  the hospital on 14th April 2002 who presented him  with a history of the assault; he found tenderness on    the right forearm, upper chest and upper back and classified the injuries as “harm”. He produced the P3 form that he completed upon examination.

In his defence, the appellant denied committing the  offence and stated that he resides in Kambi Somali   estate; that on the date PW1 was allegedly robbed he  was sick at his home and that he was arrested at his     place of work for an offence he did not commit.

Based on the evidence, the lower courts made concurrent findings that the circumstances under which the complainant was attacked were conducive for positive identification and that the appellant was indeed positively identified. In this regard, the trial court expressed itself as follows:

“It does not appear to be in dispute that both PW1 and PW2 knew the accused before.  PW1 said accused was one of the people who attacked him this night and took his property and that when the taxi appeared with lights on, which he says he used to recognize the accused.  PW2 says he arrived on the scene driving the taxi and the lights fell on the attackers who he called by name he knows him. Accused took off and dropped pullover which turned out to belong to PW1 and which PW1 said was one of the taken items.  This was at night but both PW1 and PW2 say the vehicle lights hit on the accused and they recognized him. I have considered that at night the circumstances of recognition have to be carefully tested to make sure that there was no possibility of error or mistaken identity. I have considered prosecution and defence.  I saw these witnesses as they gave evidence and saw the accused as he was recognized and as he gave evidence in defence.  I know the accused faces a capital charge and the evidence that should convict him should be full (sic) proof.  I am certain that the accused is among the people who robbed PW1 and find so and find the alibi is fake and an afterthought.”

As already noted the High Court upon re-evaluating and analyzing the evidence arrived at the same       conclusion. We have no basis for interfering with the concurrent findings by the lower courts. As this Court         stated in Karingo vs. Republic [1982] KLR 213]:

“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.  The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari C/O Karanja vs. R(1956) 17 EACA 146)”

The evidence of PW 1 and PW2 placed the appellant at  the scene of crime. They recognized him as one of the    assailants. The words of this Court in Anjononi & Others V R (supra) that “Recognition of an assailant is    more satisfactory, more assuring and more reliable than  identification of a stranger because it depends upon        personal knowledge of the assailant in some form or other” ring true. There is therefore no merit in the complaint by the appellant that his identification was improper or   did not accord with the law. We are satisfied that the     prosecution proved its case beyond any reasonable   doubt and that the High Court discharged its mandate to re-evaluate the evidence and to draw its own conclusions.

We turn now to the complaint that the lower courts failed to appreciate that there was no charge sheet and  that the appellant was not informed in sufficient detail  of the charge he was facing.

We have perused the original handwritten record of the trial court. The first two pages of that record have been plucked out. The typed notes of the trial court show that the court stated the substance of the charge and every element thereof to the appellant on 18th April 2002 before he was called upon to plead. There is no indication however of how the appellant pleaded  to the charge, but the record shows that a hearing date was on that occasion scheduled. Based on our examination of the record, there is no doubt in our minds that the same has been tampered with so as to  eliminate the charge sheet and the record of the appellant’s plea. As to who did, that we are not in a   position to say.

What we are able to ascertain from the record is that   the hearing commenced on 31st July 2002 and the appellant cross-examined prosecution witnesses without difficulty. Throughout the trial, there is no indication that the appellant complained that he did  not have the charge sheet or did not know the nature of the charge he was facing. The judgment of  the trial court and of the first appellate court contain   the substance of the charge as well as the particulars   clearly indicating that the appellant was charged with   robbery with violence contrary to section 296(2) of  the Penal Code.

We therefore reject the complaint that the courts below failed to appreciate that there was no charge sheet and that the appellant was not informed in  sufficient detail of the charge he was facing. We are  fortified in our       view by the decision of this Court in Samuel Karani vs. Republic, Cr. Appeal No. 320of 2006 [2009] eKLR where a similar complaint was  rejected by the Court on the basis that, even  though the charge sheet was missing in that case, there was other evidence showing that there was a charge  sheet in which the appellant therein was charged with  another with robbery with violence.

For those reasons, the appellant’s appeal fails and is accordingly dismissed.

Dated at Kisumu this 3rd day of July, 2015.

D. K. MUSINGA

…………………………

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

……………………………..

JUDGE OF APPEAL

K. MURGOR

……………………………..

JUDGE OF APPEAL

I certify that this is a true

Copy of the original.

…………………………..

DEPUTY REGISTRAR