Raphael Mutua Mutevu & Mutuku Kimondiu v Republic [2014] KECA 439 (KLR)

REPUBLIC OF KENYA

IN THE COURT  OF APPEAL

AT NAIROBI

(CORAM: MWILU, KIAGE & J. MOHAMMED, JJ.A)

CRIMINAL APPEAL NO. 620 OF 2010

BETWEEN

RAPHAEL MUTUA MUTEVU…………….........…1ST  APPELLANT

BONIFACE MUTUKU KIMONDIU ……….........………..2ND  APPELLANT

AND

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

(Appeal from  a Judgment of the High Court of Kenya at Nairobi  by

(Lenaola & Warsame,  JJ) dated  28th May, 2006 in

H.C.CR.A. NOS 162 & 163 OF 2006)

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

JUDGMENT OF THE COURT

The  appellants were  jointly charged, tried and  convicted and sentenced to  death by  the  Chief  Magistrate’s Court  in Machakos on  a single  consolidated  charge  of  robbery  with  violence  contrary to section 296(2)of the  Penal Code.The  particulars of that charge were   to  the   effect that  on  21st December 2004 at Kiima Junction, Kilome Division of Machakos District  of the  former Eastern Province, they had,  jointly with other persons not before court, and  while armed with dangerous weapons namely knives and  rungus, robbed one  Felix Ndolo  Yulu (PW1) of his mobile phone  and    KShs. 5000  in cash.   In the course   of that robbery they threatened to use  personal violence on their victim.

Dissatisfied with  their  conviction and  sentence,  the   appellants each  preferred a first appeal before the  High  Court sitting in Machakos. The appeals were  consolidated and heard by Hon. Lenaola J  sitting with Hon.  Warsame J  (as he then  was).   The learned Judges considered the appeal and by a judgment delivered on 28th May 2010, dismissed it, provoking this  appeal.

The  appellants filed  before this  Court  separate documents titled “Grounds of Appeal”raising five  and  eight points of grievance respectively against the  judgment of the  High  Court.  At the  hearing of the  appeal however, their learned counsel, Mr. Rombo,  elected to argue Ground four only  of the  1st  appellant’s appeal, which is that the  learned Judges  faulted to  evaluate the  entire evidence afresh to the  standard by  law   required,  abandoning the   rest.   With   regard  to  the   second appellant, counsel abandoned all the  grounds save  the  first that challenged that appellants’ alleged identification or  recognition at the scene.   Even  though counsel said  he would also  be arguing grounds 7 and  8  which faulted the  alleged rejection of the  appellants’ defence and  failure to give  due  weight to the  OB entry at Salama  Police Station and  his defence, no submission on these  points were  made  before us. We have  nevertheless taken those  grounds into  consideration.

On the  complaint by the  1st   appellant that the  learned Judges did not evaluate the  evidence that was tendered before the  trial court, Mr. Rombo  submitted that had  they done  so,  they would have  noted the glaring omission that the  complaint’s first report of the  robbery to the police did  not mention the  1st   appellant by  name, notwithstanding his claim to  know   him  well.     The  complaint ties  in  with that of the  2nd appellant who attacked the  identification or recognition evidence as insufficient to found a safe conviction.

We  have   perused the   record fully  mindful that  the   appellants were  indeed entitled to expect and demand of the  High Court, as a first appellate  court, a fresh and  exhaustive, re-evaluation in   and  analysis of evidence before arriving at its  own  independent  conclusion as  to their guilt or otherwise.  See OKENO –VS- REPUBLIC [1972] EA 32; WAGIDE –VS- REPUBLIC [1983] KLR 569.  Having done  so, we find no  substance  in   the   appellants’  claim  that  the   evidence  was   not properly re-evaluated or  that they were  not properly identified at the scene.

The  robbery incident incontestably occurred in  broad daylight at about 10. 00 am. The robbers, whom the  complainant (PW1) identified as the  appellants herein, were  people that PW1 knew.  In fact, the  1 st appellant in  his  unsworn defense confirmed that the  complainant was his  friend.   PW1  knew   the  second   appellant physically and  told   the police that were  he to see him,  he would recognize him,  and he did.

Other  than  the  recognition evidence of PW1, there was  also  the evidence of PATRICK LUNGAHO MWAKEa boda  boda  cyclist who witnessed  the   robbery  and   even   came   to   PW1’s  aid   only   to  be confronted by  the  appellants’ club-wielding accomplice and  so ran  for dear  life.  He gave  a very  detailed account of what each of the  robbers did as they relieved the  complainant of his possessions and money.

The  case  confronting the  appellants and  the  evidence tendered clearly left  no  room   for  mistake as  to the   identity  of the   robbers, namely themselves.  It was  broad daylight; the  robbers did  not cover their  faces  or   otherwise  attempt  to  conceal their  identities;  the appellants were  not just identified but actually recognized; it was not a single witness but two  who  testified as to the  identity of the  robbers as the   appellants.    The  totality  of the   circumstances  surrounding  the robbery leave  no  doubt that the  identification evidence, which was  in the  nature of recognition and  therefore more  assuring and  satisfactory (ANJONONI –VS- REPUBLIC [1980] KLR 59),  was solid,  cogent and iron  clad  leaving no  room  for doubt or  mistake.  We are  satisfied that the    learned  Judges   properly   addressed  the    evidence  as   to  the identification of the  appellants and  arrived at the  correct conclusion that their conviction was  sound.  They  were  also  justified in  rejecting the  1st    appellant’s defence that he too  was  a  victim of the  robbery. That defence was  clearly an afterthought given the  overwhelming and unshaken evidence of his involvement in the  robbery as testified to by PW1 and PW2.

The  two  courts below   made   concurrent findings of fact on  this aspect and we, as a second  appellate court confined to matters of law, cannot   interfere    in    the    circumstances,       see    Section    361if    theCriminal Procedure Code; KARINGO –VS- REPUBLIC [1982]KLR

219.

In  the  result, we  agree   with Miss  Oundo,   the  learned Assistant Director of Public Prosecutions that this  appeal is devoid of merit.  It is accordingly dismissed.

Dated and delivered at Nairobi this  18th day of July 2014.

P. M.MWILU

…………………..

JUDGE OF APPEAL

P. O.KIAGE

………………….

JUDGE OF APPEAL

J. MOHAMMED

……………………

JUDGE OF APPEAL

I certify that thisis a truecopy  of the original

DEPUTY REGISTRAR

b/c