Ranu v Republic [2022] KEHC 12201 (KLR)

Ranu v Republic (Criminal Appeal E042 of 2021) [2022] KEHC 12201 (KLR) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12201 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E042 of 2021

GV Odunga, J

July 12, 2022

Between

Salim Ali Ranu

Appellant

and

Republic

Respondent

(being an appeal from the judgement delivered on 14th June 2021 in CMCC Case number 614 of 2018 by Honourable H. Onkwani, Principal Magistrate in Mavoko)

Judgment

1. The appellant was charged with three (3) counts.

2. In count 1, the appellant was charged with robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code.

3. The particulars of the offence are that on the night of July 14, 2018 at along Daystar Athi River road in Mavoko sub county within Machakos county jointly with others not before court while armed with pangas and metal bars robbed IAN cell phone make samsung 17 prime, head phones make sony all valued at Kshs 2,600/- and immediately before such robbery used actual violence to IAN in order to retain the stolen property.

4. In count II, the appellant was charged with robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code.

5. The particulars of the offence are that on the night of July 14, 2018 at along Daystar Athi River road in Mavoko sub county within Machakos county jointly with others not before court while armed with pangas and metal bars robbed Clinton Kirimi Mberia cell phone make tecno common x valued Kshs 16,500 and cash Kshs 4,600 and immediately before and immediately after such robbery used actual violence against CKM in order to retain the stolen property.

6. In count III, the appellant was charged with robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code.

7. The particulars of the offence are that on the night of July 14, 2018 at along Daystar Athi River road in Mavoko sub county within Machakos county jointly with others not before court while armed with pangas and metal bars TNM cell phone make samsung galaxsy J5n wrist watch, bracelet all valued Kshs 35,000 and cash Kshs 50 and immediately before and immediately after such robbery used actual violence against TNM in order to retain the stolen property.

8. The appellant pleaded not guilty to each charge and the matter proceeded to hearing with the prosecution calling six witnesses.

9. PW1, IAN, a student at [particulars withheld], stated that on July 14, 2018, he was travelling in an uber taxi with the driver and his girlfriend, PW2. Upon reaching the diversion to Daystar university near Inter County Country club, the driver saw a flash light and stopped. There, they saw four people in military jackets whom they thought were police officers. One of the men approached the window and asked the driver for a ride to pursue some thugs but he told him it was a taxi. Notwithstanding that two people entered the front and two at the back of the car and they proceeded. He averred that he did not see their faces.

10. One man told the driver to stop and they got out and inquired as to whether they were going to Daystar and then ordered the driver to switch off the car and alight. They searched the car and ordered them back to the back seat after which they drove to a dark corner where they stopped. The said people then took their phones, money, jewellery and warned them against running away. It was his testimony that he, together with the driver were tied and they were ordered to lie face flat. However, PW2 was not tied up but later he heard her scream three times. When he tried to get up, a man put a panga to his head and told him he would slash him if he moved. Though he saw his face, he did not do so properly.

11. PW2 later joined them where they were lying and informed him she had been raped. While they were still on the ground, three men took off with the car, leaving one man behind. After twenty minutes, they returned and went away with PW2 and returned after 45 minutes and parked the car at a distance. He heard footsteps that he later learnt were PW2’s who came and untied them.

12. He told the court the vehicle was registration number KCH xxxA Mazda and that the men had told them they only wanted the car and money. They reported at Athi River police station and T was referred to Nairobi Women’s hospital. Later they were called by one inspector Wanjohi whom they took to the scene together with other officers.

13. It was his evidence that at an identification parade, he was asked to pick out the attackers from a group of 10 men who were roughly the same height and build. Upon being asked to speak, he recognized the appellant’s voice as that of the one who threatened to slash him and took his earphones. He identified him as the accused person in court.

14. Upon cross examination, he stated that the accused was at the far left of the identification parade and he recognized him by his face and voice. He denied touching the accused person nor indicating that he could identify his attacker in the 1st report. He stated that he could not see properly as it was dark but since the accused person was next to him and spoke to him, he was able to identify him. He stated that the identification parade was conducted on September 9, 2018 and that he was not aware of anything recovered from the accused person.

15. I re- examination, he said he pointed out the accused person but did not touch him and that the car lights were on.

16. PW2, TNM, testified that on July 14, 2018 she was headed to Daystar with PW1 in a taxi cab. Upon reaching near Daystar diversion at around 11. 30pm, they were flagged down by four men with torches in jungle fatigues whom they thought were policemen. The four asked for their identity cards which she gave and then requested for a ride as they were pursuing thugs.

17. They got into the car and after 200metres the men asked the driver to stop and asked them to alight. She saw their faces as the interior light came on after the doors were open, one was large and dark the other tall and dark, the third one was of medium height who was dark with a beard and the fourth one was about her height. They got out of the car and two men went to the driver’s side and removed the key. When another car was approaching, they were told to enter the car. The large man drove the car to a nearby bush, two men seating in front and the other at the back where they asked them to alight and demanded for phones, money, watches and jewellery which they gave. The large man searched her and touched every single part of her body inappropriately. The men tied the driver and PW1’s hands and legs with wires and told them to lie on the ground with their stomachs. They wanted the car but the driver told them it had a tracker.

18. One of the men told her to go with him and he dragged her to the bush where she was raped and thereafter called his friend who also raped her. She stated that three men raped her and the last one wiped himself with her underwear and told her to wear it which she did and she was dragged to where PW1 was. Three men then left with the car and she was left with one man who had a panga close to her head, she did not see his face as he was seated while she was lying down.

19. After an hour, the others returned and started arguing with the man who was left behind telling him to set her free. She was untied and asked to untie her friend and the driver. She was then asked to drive them, which she did to the junction and when she started driving on the other side of the road, the large man stopped her and asked her to go to the rear. After two other cars that were approaching had passed, they returned to where PW1 was and she was told to count 8 minutes before untying them. She untied them and they went to report at Athi River police station where she was given a letter to go for examination. They stole her phone samsung J5, a ring, a watch, a perfume, t shirt and Kshs 50 but she could not remember the value of the goods stolen.

20. She was examined at Nairobi Women’s Kitengela and given ARVs and PRC form filed. Later they took the police to the scene where they recovered both brush and wires. At the identification parade, she was shown between 10 to 12 men who kept changing positions and were of the same height, size and weight. She pointed out the appellant person whom she remembered clearly. She stated that she was raped by three men including the appellant whose face she saw before he raped her. She recalled that during the ordeal that lasted for two minutes, she saw his face and as there was physical contact, hence she knew it was the appellant.

21. Upon cross examination, she stated that she identified the appellant at the identification parade that was done at a police station past Daystar university. She indicated that there was light in the car and the men had torches. She did not know if PW1 wrote a further statement but she did not recall writing one. She said the appellant had a police jacket and was dark skinned. It was her evidence that she gave descriptions of the people who raped her and described the accused person as dark skin and medium height.

22. In re-examination, she said it was not pitch-black outside and there was lighting in the car. She reiterated that the accused had body contact with her.

23. PW3, Clinton Kirimi, a taxi operator was on July 14, 2018 at 11pm on Langata road when he received a request to pick two passengers who intended to go to Athi River and on their way towards Daystar. On their way, they saw men in jungle green uniform with flash lights and they stopped. One of the men approached the car and told him that they were on patrol and were pursuing some thugs and asked for a lift. They got into the car and after he drove for 200m, they ordered him to stop and asked them to alight for them to conduct a search. They had machetes and they took their phones. They drove into a thicket where they stopped and they were told to alight. They searched the car and tied their hands and legs with a wire and made them lie on the ground. One man stood while the other 3 went into the bush with PW2 and after 30minutes they came back and made PW2 lie down. They later took PW2 and left but returned and then left without the car. After they had been untied by PW2, they drove to Athi River police station and later he learnt that the girl had been raped. They took her to hospital. In court, he identified the wires used to tie them. It was his evidence that he did not know the accused and did not see him at the scene.

24. Upon cross examination by the accused person, he disclosed that he attended an identification parade with about 10 to 12 people but did not pick out anyone.

25. PW4, John Njuguna, an outpatient clinician at Nairobi Women’s hospital, examined PW2 on July 15, 2018 who alleged she had been raped by 3 men. At that time, PW2 Had pain in her genitalia. He observed that she had bruises and semen in her vagina. In his opinion, she had been raped. He produced the PRC and GBRC form.

26. Upon cross examination, he told the court that PW2 had her pants on and stated that she did not know her assailants.

27. PW5, corporal Patrick Maloba, testified that on September 18, 2018 after getting information from the officer in charge Chumvi police post that some suspects had been arrested, he proceeded to Chumvi where he received them and conducted an identification parade with 8 men with similar features. He said PW1 identified the appellant person by touching him and told him that the accused had taken his phone and headphones on July 14, 2018. The identification parade form was signed by the accused which he produced. He said the other two witnesses were unable to identify the appellant. He also indicated that he had previously instructed C/P Wanjohi to investigate a robbery case. They wrote to Mavoko medical centre to get samples of the accused’s DNA but he was not sure if the DNA was extracted as he was transferred.

28. Upon cross examination by the appellant, he stated that he did not know why the appellant was arrested but stated that he conducted the parade on September 18, 2018. He had however, not been given a description of the attackers. He indicated that no one else saw the appellant as he got him from the cell and further that he did not have a witness during the parade. He stated that the appellant had stated that he was not satisfied with the parade but did not give reasons.

29. In re-examination he said that the accused person signed the identification parade form.

30. PW6, corporal paul Were, attached to DCI Athi River as a driver testified that on July 15, 2018 while at work with chief inspector Wanjohi and PC Korir, two ladies reported at the station that they had been car jacked at inter county city. They went to the scene which was a diversion where they had been taken and they found wires used to tie them and a phone cover which he exhibited.

31. In cross-examination, he stated that he was not the investigating officer and only recovered a wire and phone cover. According to him, the report was made on July 15, 2018 at Athi River police station and the hijacking was on July 14, 2018.

32. Upon the close of the prosecution’s case the appellant was placed on his defence and he opted to give sworn testimony and had no witnesses. According to him, on July 14, 2018 he was at work and returned in the morning. He works with sand. On August 24, 2018, one Musa, the in charge of the mosque told him that he wanted to convert his lorry to carry sand. After two days he called him and in the company of other elders and PC Salim Duka they went to the mosque where they agreed that he uses the lorry to carry sand. He left the meeting and met Salim who asked him why he had converted the lorry, he said he was not aware leading to an argument.

33. On September 1, 2018 at 6. 30pm he met PC Salim and Wambua, a police officer who stopped him and told him that the OCS wanted to see him. At the police station, he was booked and placed in the cell. At 11pm DCI officers who were investigating murder took them for investigation. The officers saw there was CCTV which they availed.

34. According to him, on September 3, 2018 the OCS Kyumbi told the officers to take him to court. He was accordingly booked under OB 21/September 3, 2018 and on September 4, 2018 he was taken to Machakos court for murder. He produced an affidavit. It was his evidence that the investigations took 15 days and on September 9, 2018 an identification parade was concluded in which the complainants said no one was involved in the case. They were released on September 19, 2018 but immediately re arrested and PC Salim took him to Athi River where DNA was done. He was later charged with the offence of robbery with violence which he denied committing and contended that no DNA results were produced. Further he contended that no identification parade was conducted in this case.

35. Upon cross examination, he stated that on July 14, 2018 he went to work at 7. 30pm and that his employer was an old man who could not come to court. He confirmed that he did not have witnesses and alleged that PW2 lied in court.

36. The trial court in its judgement found that there was positive identification of the accused person as the attacker. The trial court found that the defence testimony was mere denial and that PC Salim who was being referred to was not a witness in the case neither was he mentioned by the prosecution and it saw no reason why the said PC would want to implicate the appellant in the offence. Further, it found that there were four robbers who were armed with a panga and ropes which ropes were recovered from the scene of crime together with the phone cover. It was the court’s finding that the appellant raped PW2. As a result, the appellant was found guilty of robbery with violence and after mitigation, the appellant was sentenced to serve 50 years in prison.

37. Aggrieved, the appellant lodged this appeal on December 3, 2021 raising the following grounds;a.The trial magistrate erred in law and fact in basing the appellant’s conviction on the purported identification at the alleged scene of crime without considering that the identification parade was doubtful.b.The trial magistrate further erred in law and fact in convicting the appellant of the charges which were not adequately proved as the charge sheet was defective and there occurred some irregularities contrary to section to section 151 of the CPCand article 50(2) (h) of the Constitution of Kenya, 2010. c.The trial magistrate lost direction in evidence and rejected the appellant’s defence without considering the same was not displaced by the prosecution as per section 212 of the Criminal Procedure Code, and in violation of section 169 (2) of the same code.

38. It was submitted on behalf of the appellant that though he was charged with gang rape, there was no charge sheet to prove the alleged offence. He submitted that PW1 did not at any stage manage to identify any of his attackers as he was in shock and fear in the circumstances and not in a composed state of mind to be able to identify his assailants since he had been threatened with being slashed. He therefore submitted that the trial court arrived at a wrong conclusion as it did not weigh the evidence of PW1 and other witnesses. Reliance was placed on the case of Kariuki Njiru & 7 others v Republic Cr App No 6 of 2001 on scrutiny of identification evidence.

39. It was submitted that there was nowhere throughout the whole ordeal where PW2 identified the appellant, all she said was that she could see saw their faces as the interior light came on after the doors were open, one was large and dark the other tall and dark, the third one was of medium height who was dark with a beard and the fourth one was about her height. That she further stated that she could not see the face of the man who had a panga as he was seated and she was lying down and there is nowhere she gave a description of the appellant. He cited the case of Maitanyi v R 91986) KLR 198 and submitted that there is no clear evidence of the particulars of the general description of the assailants by the complainants.

40. On the identification parade, it was submitted that PW1 left the following questions unanswered; was the parade supposed to be made of 10 members? Were the said men roughly of the same height and build and at what about their age? When the voice identification parade was conducted, was it being conducted at the same parade of visual identification or was it somewhere else where parade members covered their faces? The appellant referred to the evidence of PW5 who stated that he conducted the parade with 8 men of similar features and the appellant was identified by touching. In the appellant’s submission, there were inconsistencies in the evidence of PW1, PW2 and PW 5; while PW2 said that she picked one man, PW5 stated that 2 people could not identify the appellant. Further that there was no evidence that these witnesses signed the parade form which was made clear by PW2 who stated that she was not given a form to sign and was not aware whether PW1 was given a form to sign.

41. It was submitted that the identification parade must have been conducted before the appellant was arrested as he was arrested on September 9, 2018 and the identification parade was conducted on the same day which he contends is not curable under section 382 of the Criminal Procedure Code.

42. It was submitted that the charge sheet was defective since there was no evidence of the semen found in the vagina of PW2. Secondly, the value of the properties alleged to have been lost by the complaint in the chargesheet was not given in evidence.

43. In his submissions, the charges were duplex for citing “295 as read with 296(2) of the Penal Code” which he contended resulted in an unfair trial under article 50 (2) of the Constitution of Kenya, 2010. Further, none of the witnesses testified with regards to stealing but robbery with violence and thus the form in which it was could confuse the accused person who was not sure which offence he was being charged with.

44. The appellant also submitted that there were irregularities in the manner in which the proceedings were conducted. According to him, at the time of swearing in witnesses, the court indicated for PW1, as “christian male IAN” and the same format is repeated for PW2, PW3, PW4 and PW5 contrary to section 151 of the Criminal Procedure Code. Further violation of this section, according to the appellant was the failure by the investigating officer to testify and explain why the appellant was arrested.

45. It was further submitted that section 143 of the Criminal Procedure Code, section 33 as read with section 77 of the Evidence Act were not complied with. Further, he contends that his rights under article 50(2)(h) were violated as he was not provided with counsel at state expense until the prosecution closed its case and thus was not afforded a fair trial.

46. According to the appellant, section 169 (2) of the Criminal Procedure Code was not complied with as his sworn evidence was not considered by the trial court.

47. He therefore prayed that the appeal be allowed in its entirety and his conviction and sentence imposed be set aside.

48. In opposing the appeal, the respondent submitted that the ingredients for robbery with violence had been satisfied. It was contended that PW1’s testimony that the attackers were armed with a panga and a rope was corroborated by PW2 who said that she was threatened as they robbed her and PW3 who said that the robbers tied them up with one holding a panga with which he was threatened. Secondly, that there were four attackers and this was stated by PW1 and PW2 and therefore the second ingredient of being in the company of more than one was satisfied. Thirdly, the fact of wounding, beating, striking or using violence on a person at or immediately after the time of the robbery was satisfied as PW2 said she was raped by three men in turns and this was corroborated by PW1. Further, the clinical officer who treated PW2 produced the P3 form, PRC form and gender based recovery form and concluded from his observation that from the pain in her genitalia, bruises on her vagina and semen in her vagina, she was raped. Reliance was placed on the case of Johana Ndungu v Republic, Criminal Appeal Number 116 of 1995.

49. It was submitted, while relying on the case of Karanja & Another v Republic(2004) 2 KLR and Kiilu and Another v Republic(2005) 1 KLR 174 that PW1 and PW2 were able to positively identify the appellant. PW2 was able to have physical contact with him during the rape ordeal when she was dragged to the bush and the complainants were given an opportunity to identify him during the identification parade.

50. On the issue of whether the appellants defence of an alibi was considered, it was submitted that the evidence of the appellant that he was at work on July 14, 2018 was not corroborated as he did not call any witness. The evidence of both parties was considered and the trial court found that the appellant could not exonerate himself from the offence. He therefore prayed that the appeal be dismissed and the conviction and sentence upheld.

Determination 51. I have considered the record of appeal, the petition of appeal and the submissions thereto.

52. This being a first appeal, it is correct as submitted by the appellant that this court is expected to analyze and evaluated afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. If any authority is needed for this old hat position the case Okeno v Republic[1972] EA 32 readily comes to mind. In that case, the Court of Appeal set out the duties of a first appellate court as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424. ”

53. Similarly, in Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus;“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. in doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

54. Section 296 of the Penal Code provides as follows:(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

55. The definition of robbery however appears in section 295 thereof as follows:Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

56. In this case the attackers were four in number. In Masaku v Republic[2008] KLR 604, the court reiterated that:“It is now well settled that any one of the following need be proved to establish the offence:1. If the offender is armed with any dangerous or offensive weapon or instrument or2. If the offender is in the company of one or more offenders or3. If at or immediately before or immediately after the time of the robbery he wounds, strikes or uses any other violence to any person.In this case, the particulars of the charge stated that the appellant was with another at the time of the robbery and further that at or immediately before or immediately after the time of such robbery wounded the deceased. It is plain therefore that two of the three ingredients of the offence of robbery with violence under section 296(2) of the Penal Code were given. It should be remembered that a single ingredient is sufficient.” See also Olouch v Republic (1985) KLR.

57. The Court of Appeal in the case of Dima Denge Dima & Others v Republic, [2013] eKLR, affirmed this position when it expressed itself as hereunder:“…The elements of the offence under section 296 (2) are, however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction. This was considered at length by this Court in Johana Ndungu v Republic Criminal Appeal No 116 of 1995 (unreported;)“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or properly at or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in section 296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section.1. If the offender is armed with any dangerous or offensive weapon or instrument, or2. If he is in company with one or more other person or persons, or3. If, at or immediately before or immediately after the time of the robbery, he wounds beats, strikes or uses any other violence to any person. [ emphasis added]Analyzing the first set of circumstances the essential ingredient apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus if the facts show that at the time of commission of the offence of robbery as defined in section 295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”

58. Therefore, for the offence of robbery to be proved there must be evidence of theft by the person charged. A person cannot be guilty of the offence of robbery unless he is guilty of theft. The theft must however be accompanied by the use or threat of use of actual violence to a person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. If all these ingredients are present and the offender was armed with any dangerous or offensive weapon or instrument, or was in company with one or more other person or persons, or at or immediately before or immediately after the time of the robbery, he wounded, beat, struck or used any other personal violence to any person, he would have committed robbery with violence and would be sentenced to death.

59. I must however mention that the manner in which section 295 and 296 are couched do not set out in sufficient precision, distinctively clarifying and differentiating the degrees of aggravation of the offence of robbery. This is so because a strict reading of section 295 of thePenal Code reveals that a person who commits the offence of theft and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. Similarly, a person who commits the offence of theft (which is one of the ingredients of robbery) and at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person, is to be sentenced to death. To wound, beat, strike or use personal violence under section 296(2), in my view is the same as to use actual violence to a person under section 295 of the Penal Code.

60. I therefore I agree with the position adopted in Joseph Kaberia Kahinga & 11others[2016] eKLR that the said sections do not meet the constitutional threshold of setting out in sufficient precision, distinctively clarifying and differentiating the degrees of aggravation of the offence of robbery and attempted robbery with such particularity as to enable those accused to adequately answer to the charges and prepare their defences.

61. The standard of proof in criminal cases is beyond reasonable doubt as stated in Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR where Mativo, J stated that:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

62. Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:-“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

63. The first issue that the appellant raised is that the charge sheet is defective as it has duplex charges since it read “295 as read with 296(2) of the Penal Code” which he feels resulted in an unfair trial as per article 50 (2) of the Constitution of Kenya, 2010 and in addition though the evidence adduced revealed the commission of the offence of gang rape, that offence was omitted from charge sheet.

64. Section 134 of the Criminal Procedure Code provides that;Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

65. The Court of Appeal in Peter Ngure Mwangi v Republic [2014] eKLR observed that;“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this court stated in Yongo v R, (1983) eKLR that:“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:i.when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,ii.when for such reason it does not accord with the evidence given at the trial.’

66. In the case of Peter Sabem Leitu v R[2013] eKLR the court expressed itself thus:“The question therefore is, whether the aforesaid defect in the charge sheet caused any prejudice to the appellant as to occasion a miscarriage of justice or a violation of his fundamental right to a fair trial. We think not. Having pleaded to the charge, which contained a clear statement of a specific offence, we are satisfied he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet gave further details as to the description of the property stolen, the date, place and the manner of the alleged offence.”

67. The charge sheet contains the charge and the information about what the appellant is alleged to have committed, information that was read out to him and he took a plea of not guilty. The appellant seems to suggest that in fact there are other crimes that were committed but were not contained in the charge sheet. The decision to charge a person with crimes rests entirely in the prosecution who has the mandate to draft charges and present them to court. It is not for the accused person to decide for the prosecution which charges to prefer against him since article 157(6)(a) of the Constitution vests the power to institute and undertake criminal proceedings in the director of public prosecutions.

68. Similarly, section 23(1) of the Office of the Director of Public Prosecutions Act provides that: -“Notwithstanding the provisions of any other law, it shall be the function of the director to —(a)decide to prosecute or not to prosecute in relation to an offence;(b)institute, conduct and control prosecutions for any offence; carry out any necessary functions incidental to instituting and conducting such criminal prosecutions”

69. In this case, I do not see how the failure by the prosecution to prefer other charges against the appellant prejudiced him. To the contrary, it was to the benefit of the appellant that the said charges were omitted.

70. As regards duplicity, section 137 (a) of theCriminal Procedure Coderequires the following in terms of framing of charges;i.Mode in which offences are to be charged.—a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;ii.the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

71. Article 50(2) (b) of the Constitution, 2010 states that:-Every accused person has the right to a fair trial, which includes the right—(b)to be informed of the charge, with sufficient detail to answer it.

72. In this case the statement of offence contains all the information with respect to the offence including the punishment in the event the accused person is found guilty of the offence. The charge set out the date of the offence, the place it was committed, the number of offenders involved, the weapons they had, what was stolen from the victims and their value and the manner in which the offence was committed. In my view, for the purposes of robbery with violence the particulars set out were sufficient. I therefore find that there is no warrant to impeach charge sheet as it contained sufficient information that enabled the appellant to respond conclusively.

73. The next issue for determination is whether the crime of robbery with violence was established. From the evidence adduced by the prosecution’s witnesses, From the record and going by the elements highlighted above, the attackers were armed with pangas, this was stated by the three complainants in their evidence therefore satisfying the first element of robbery with violence. Secondly, the attackers in this case were four in number, this has been corroborated by PW1, PW2 and PW3 thus satisfying the second realm of this crime. Lastly, was there any sort of violence at or immediately before or immediately after the time of the robbery? The answer is in the affirmative. PW1 was threated when he was asked for his property, he was threatened with being slashed, he was tied with a wire and was told to lie on his stomach. PW2 was threatened as she was asked for her property, she was told to lie down, she was searched inappropriately and she was told to drive the attackers at some point in the ordeal. In addition, she was dragged to the bush and raped. Both from the oral evidence and the documentary evidence it is clear that there was evidence of penetration and the said penetration was unlawful in the sense that it was not through the consent of PW2. PW3 was told to get out of car, he was told to sit at the back, he was asked to give his property, he surrendered the keys to his car, he was tied with a wire and was told to lie on the ground. Furthermore, all the complainant were asked to get int the car and driven without their consent. There was actual bodily harm to the complainants. This evidence is undisputed.

74. Accordingly, the evidence was sufficient to constitute an offence of robbery with violence.

75. The next issue for consideration is whether it was the appellant who committed the offence. According to PW1, he recognised the appellant by his voice as well as his face. He however conceded that he did not state in his statement that he could identify his assailant.

76. In Libambula v Republic Criminal Appeal No 140 of 2003 [2003] KLR 683, the issue of voice identification was dwelt on by the Court of Appeal in which it stated as follows:“Normally, evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice, the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it. See Choge v Republic [1985] KLR 1. ”

77. In this case, it is clear that PW1 did not know the appellant prior to the date of the incident. He did not inform the police when he was recording his statement that he could identify the assailants by his voice. The approach on issues of identification was emphasized in the case of Francis Kariuki Njiru & 7 others v Republic Cr Appeal No 6 of 2001 (UR) where the Court of Appeal stated:“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinised carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered (see R v Turnbull [1976] 63 Cr App R 132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all. This court, in Mohamed Elibite Hibuya & another v R Criminal Appeal No 22 of 1996 (unreported), held that:“It is for the prosecution to elicit during evidence as to whether the witness had observed the features of the culprit and if so, the conspicuous details regarding his features given to anyone and particularly to the police at the first opportunity. Both the investigating officer and the prosecutor have to ensure that such information is recorded during investigations and elicited in court during evidence. Omission of evidence of this nature at investigation stage or at the time of presentation in court has, depending on the particular circumstances of a case, proved fatal – this being a proven reliable way of testing the power of observation, and accuracy of memory of a witness and the degree of consistency in his evidence.”

78. The importance of the first report in such circumstances was emphasised by the Court of Appeal in Tekerali s/o Korongozi & 4 Others v Rep (1952) 19 EACA 259 where it was held that:“Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.”

79. And in the case of Rex v Shabani Bin Donaldi (1940) 7 EACA 60 it was held that:“We desire to add that in cases like this, and indeed in almost every case in which an immediate report has been made to the police by someone who is subsequently called as a witness evidence of the details of such reports (save such portions of it as may be inadmissible as being hearsay or the like) should always be given at the trial. Such evidence frequently proves most valuable, sometimes as corroboration of the evidence of the witness under section 157 of the Evidence Act, and sometimes as showing that what he now swears is an afterthought, or that he is now purporting to identify a person whom he really did not recognize at the time, or an article which is not really his at all.”

80. In Maitanyi v Republic (1986) KLR 198 (supra), the court held that:“There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant's aid, or to the police. In this case no inquiry of any sort was made...If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify or recognize the person, then a later identification or recognition must be suspect, unless explained.”

81. In this case, it was the evidence of PW1 that though he saw the man who threatened to cut him with a panga he did not see him properly. Presumably this was the appellant since he did not mention any other attacker speaking to him. The question that arises is whether the prevailing circumstances were conducive for a proper identification. The learned trial magistrate, apart from setting out the authorities dealing with identification in difficult circumstances such as the ones before her, does not seem to have sufficiently delved deeply into evaluation of those circumstances vis-à-vis the court decisions she cited.

82. The incident in question took place at night and the only source of light was moonlight. As was appreciated in R v Turnbull & others(1976) 3 All ER 549:“The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?...Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” [emphasis added].

83. The evidence adduced did not show the brightness of the moonlight that night. In Criminal Appeal No 24 of 2000 - Paul Etole & Reuben Ombima v Republic, the Court of Appeal reiterated the need for caution by holding that:“The appeal of the 2nd appellant raises problems relating to evidence and visual identification. Such evidence can bring about miscarriage of justice. But such a miscarriage of justice occurring can be much reduced if whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused, the court should warn itself of the special need for caution before convicting the accused. Secondly, it ought to examine closely the circumstances in which the identification by each witness came to be made. Finally it should remind itself of any specific weakness which had appeared in the identification evidence. It is true that recognition may be more reliable than the identification of a stranger; but even when witness is purporting to recognise someone who he knows, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good and remains good at the close of the accused’s case the danger of mistaken identification is lessened, but the poorer the quality the greater the danger. In the present case, neither of the two courts below demonstrated any caution. This is a serious non-direction on their part. Nor did they examine the circumstances in which the identification was made. There was no enquiry as to the nature of the alleged moonlight or its brightness or whether it was a full moon or not or its intensity. It was essential that there should have been an enquiry as to the nature of the light available which assisted the witnesses in making recognition. What sort of light, its size and its position the vis-à-vis the accused would be relevant.”

84. In David Mwangi Wanjohi & 2 others v Republic [1989] eKLR it was held by the Court of Appeal that:“The quality of the evidence has to be considered. Does starlight afford a means of illumination for observing the shape or features of a person to such a degree that proof can be had beyond reasonable doubt, or is it a state of darkness richer in imagination than fact? There is no doubt that starlight per se affords no scientific means of illumination at all. It may purport that there was a clear sky, against which there might be seen the semblance of a human being. But it is not an assured basis, such as moolight, for observing the details of the features of a person. Indeed Nelson could not tell what clothes the appellant was wearing, however close the latter was to Nelson. It is plain that Nelson could not see details, and the appellant did not speak, nor move in any special way, or indicate any special feature. We are bound to say that the quality of the evidence was precarious at best, and that it was a misdirection for the High Court to conclude that the conditions for “identification were not unsatisfactory.” However long Nelson had known the appellant, if there was no light by which to see the appellant, nor other means of recognition, Nelson could only have guessed at the identity of the man near him, and in that event the failure to put the cardinal question, could Nelson have been mistaken, was a grave error. It is also surprising to find that the High Court felt that mistaken identify was not raised by the defence. The appellant had said that he had not been present. Is that not raising the issue of mistaken identity? It is said that he did not cross-examine Nelson on mistaken identity. Was that not suggested by the question to which the answer was “no, I could not recognize the clothes you were wearing when I was attacked.” But in any case, upon whom was the burden of proof? Was it not upon the prosecution who were relying on improbable evidence?”

85. In my view the prevailing circumstances were not conducive for proper identification by PW1.

86. As regards PW2, she stated that she recognised the appellant as one of the people who raped her. The said ordeal took two minutes. It was her evidence that she gave his description to the police as dark skinned and of medium size. Whereas, PW2 stated that she picked out the appellant at the identification parade, PW5 who conducted the parade stated that only PW1 was able to identify the appellant at the parade. That raises the issue as to whether PW2 did attend the identification parade. If she did not, then what motivated her to be untruthful? If she was untruthful, would she be considered as a reliable witness? In the case of Ndung’u Kimanyi v Republic [1979] KLR 282 it was held that:“A witness in criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence”.See also Alicandioci Mwangi Wainaina v Republic Criminal Appeal No 628 of 2004 and David Kariuki Wachira v Republic [2006] eKLR.

87. According to the appellant, he was initially booked for an offence of murder. He produced an affidavit sworn by one PC Salim Cheka as his evidence to that effect. The said affidavit in fact confirmed that he was arrested on September 3, 2018 following a murder incident that occurred on August 29, 2018. This incident took place on July 14, 2018 and the appellant was arrested on September 19, 2018 according to the charge sheet. According to the appellant, there was a misunderstanding between him and the said PC Salim regarding the use of a motor vehicle.

88. Based on the said affidavit which was not challenged, the appellant’s case cannot be termed as a mere denial. The court seemed to have shifted the burden of proof to him by intimating that he ought to have called the said PC Salim as his witness. One wonders the kind of evidence the said PC Salim would have given had he been called since according to the appellant, he was the one who instigated the appellant’s arrest. In Nguku v Republic [1985] eKLR, it was held by the Court of Appeal that:“Quite obviously when analyzing the facts and the opposing evidence in a trial the individual facts and the assessment of the relative credibility of the witness thereon come first. It is incumbent on the trial magistrate or judge to consider the evidence in its respective stages and then arrive at a general conclusion on the totality of the evidence after doing so. In this case Mr Menezes’ contention regarding the second ground is borne out by the record of the judgment, which shows that the general conclusion was arrived at in advance of the individual analysis of the facts. We do not think that this point was fully appreciated by the learned judges of the High Court on the first appeal for after reciting ground two of the memorandum, which is similar to ground two in the one to this court, they said simply that on their own reading of the file and the judgment they took the view that the allegation was unjust in relation to it. If the course taken in this case is followed the point is almost bound to be taken on an appeal that the directions of this court’s predecessor in Okethi Okale v Republic [1965] EA 558 at page 559, which was cited to us by Menezes and which we now set out,‘He submitted that the passage suggests that the learned judge first accepted the case for the prosecution and then cast upon the appellants the burden of disproving it or raising doubts about it. We think with respect that the learned judge’s approach to the onus of proof was clearly wrong, and in Ndege Maragwa v Republic (10), where the trial judge had used similar expressions this court said:-“…. We find it impossible to avoid the conclusion that the learned judge has, in effect, provisionally accepted the prosecution case and then cast on the defence an onus of rebutting or casting doubt on that case. We think that is an essentially wrong approach: apart from certain limited exceptions, the burden of proof in criminal proceedings is throughout on the prosecution.Moreover, we think the learned judge fell into error in looking separately at the case for the prosecution and the case for the defence. In our view, it is the duty of the trial judge, both when he sums up to the assessors and when he gives judgment, to look at the evidence as a whole. We think it is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it. Indeed, we think no single piece of evidence should be weighed except in relation to all the rest of the evidence. (These remarks do not, or course, apply to the consideration whether or not there is a case to answer, when the attitude of the court is necessarily and essentially different).”We think that the observations of this court in that case apply with equal force to the present appeal’ have not been complied with.It is true that in that case there had been an acceptance of the prosecution case followed by an indication that the burden was cast on the appellant to rebut it, which is not the complaint here, but we nevertheless think that the direction given in that case should always be observed.”

89. In this case, the learned trial magistrate first set out the prosecution’s case followed by the defence case. Thereafter, she proceeded to do what in her view must have been an analysis of the prosecution’s case in which she made some findings as regards the proof of the ingredients of the offence. It is after doing so that she considered the defence case. The learned trial magistrate in fact made a finding that the appellant was properly identified and that the ingredients of the offence had been proved before embarking on the defence evidence. With due respect the consideration of the defence case after making findings as regards the prosecution case was improper. It amounted to analysing the prosecution case separately and in isolation and arriving at conclusions thereat. In so doing the learned trial magistrate fell in error.

90. In this case, the investigating officer was never called to testify. In Kiriungi v Rep (2009) KLR 638, the court said: -“...the effect of failure to call police officers involved in a criminal trial, including the investigating officer, is not fatal to the prosecution unless the circumstances of each particular case so demonstrate. We have examined the circumstances of this case and we are satisfied that he evidence of the investigating officer and the arresting officer would not have been prejudicial to the prosecution case as it was established beyond doubt that the appellant was involved in the crime with which he was charged.”

91. Similar sentiments were expressed in Harward Shikanga Alias Kadogo & Another v Republic [2008] eKLR by the Court of Appeal as follows:“But Mr Onalo appeared to have been contending that merely because the investigating officer had not been called, the prosecution’s case had not been probed as required by law. That submission is now frequently made in the courts and it shows that for some unexplained reason or reasons investigating officers are often not called to testify…We can also only hope that the prosecuting authorities in the country will stop the emerging practice of not calling investigating officers to testify and there may well be circumstances in which such a failure may well be fatal to the conviction. But in the appeals we are dealing with the complainant herself and her cousins, BO (PW2) and BE (PW4) all swore that they saw these two appellants during the attack on the complainant. Police constable Benard Rono (PW5) also said he arrested the appellants on October 27, 2003 after he had received information about their involvement in robberies. Rono said he was not the investigating officer but there can be no doubt from the recorded evidence that it was him who arrested the appellants and took them to Luanda police station. So in the circumstances of these appeals, the failure to call the investigating officer did not occasion to the appellants any failure of justice and we reject Mr Onalo’s contention to the effect that we allow the appeals because the investigation officer was not called. We think that in all cases it would be good practice which prosecuting authorities ought to comply with, but the mere failure to comply with it, i.e. calling an investigating officer, cannot automatically result in an acquittal. Each case would have to be considered on its own circumstances in order to determine the effect of such a failure on the entire case for the prosecution.’’

92. Sir Udo Udoma, the then Chief Justice of Uganda, however cautioned the laxity in calling investigating officers in the case of Bwaneka v Uganda [1967] EA 768 at page 771 Letters H to C at page 772 where he stated that:“The prevailing practice of not calling police officers during trials in magistrate’s courts to testify as to the part they played in deciding ultimately to arrest and charge an accused person is most unsatisfactory. It gives the impression that the police do not seem to realize that it is their duty to control and conduct all prosecutions in the magistrates’ courts in criminal cases. Generally speaking criminal prosecutions are matters of great concern to the state and such trials must be completely within the control of the police and the director of public prosecutions. It is the duty of the prosecutors to make certain that police officers, who had investigated and charged an accused person do appear in court as witnesses to testify as to the part they played and the circumstances under which they had decided to arrest and charge an accused person. Criminal prosecutions should not be treated as if they were contests between two private individuals. In the instant case the evidence was that after the appellant had been arrested by local government police, he was taken and handed over to the central government police station at Mbarara. There was no evidence as to which police officer had taken charge of the case and what steps, if any, he had taken when he had decided to arrest and charge the appellant. The absence of such evidence necessarily creates a lacuna in the case of the prosecution because it gives the erroneous impression that the central government police officers had nothing to do with the case and had taken no part whatsoever in investigating and deciding on the charge to be preferred against the appellant. It is to be hoped that in future this practice would be discontinued, because without the evidence of an accused person having been arrested and charged by the police, the proceedings of the trial with respect to the prosecution case appear to be incomplete.”

93. Whereas it is true that the mere fact that the investigating officer is not called to testify in a case is not fatal to the prosecution case and each case must be decided on its own circumstances, where the failure to do so, leads to the omission to present crucial evidence, that fact may well weaken the prosecution’s case. In this case, there is no evidence as to the circumstances under which the appellant was arrested. Both PW1 and PW3 testified that they never gave the description of the appellant to the police. While PW2 stated that she did so, PW3 stated that PW2 never identified anyone at the parade and this is supported by PW2’s testimony that she never signed the parade forms. The appellant, in is evidence stated that he was arrested for a different offence. The evidence of PW4 seemed to have supported his version since PW4 was investigating a case where the complainants were two ladies. These were issues that could have been clarified had the investigating officer been called to testify. The unexplained failure by the prosecution to call him left the prosecution’s case in a doubtful state as it failed to meet the threshold of proof beyond reasonable doubt.

94. Having considered the prosecution’s evidence together with the defence case, I am of the view that there were serious gaps in the prosecution’s case and had the prosecution’s case been considered together with the defence case, the learned trial magistrate ought to have found that the prosecution’s case, as presented, did not meet the standard prescribed in such cases.

95. Accordingly, I find merit in this appeal which I hereby allow. The appellant’s conviction is hereby set aside and his sentence quashed. He is hereby set at liberty unless otherwise lawfully held.

96. It is so ordered.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 12TH DAY OF JULY, 2022. G V ODUNGAJUDGEIn the presence of:The AppellantMr Jamsumba for the RespondentCA Susan