Republic v Samson Gitali Kariuki [2022] KEHC 26989 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CRIMINAL APPEAL NO. E008 OF  2022

SAMSON GITAU KARIUKI.............................................APPELLANT

-VERSUS-

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

(Being an appeal from the original conviction and sentence by Hon. H. Onkwani, Principal Magistrate

dated 21st December, 2020 in Mavoko Chief Magistrate’s Court Criminal Case Number 375 of 2015)

BETWEEN

REPUBLIC...........................................COMPLAINANT

VERSUS

SAMSON GITALI KARIUKI.........................ACCUSED

JUDGEMENT

1. Samson Gitali Kariuki(the appellant herein) and Bernard Mutisya Mutuva (the 1st accused) were charged before the Chief Magistrate, Mavoko in CM’s Court Criminal Case No. 375 of 2020 with four counts of Robbery with violence contrary to section 295 as read with Section 296(2) of the Penal Code. In count I, it was alleged that on the nights of 13th and 14th February, 2015 at Professor Court Estate, Syokimau Area, in Athi River Sub-County, Machakos County, they jointly with others not before Court, while armed with dangerous weapons namely rifles and pistols robbed Hon. Philip Galma Godana,one mobile phone make Samsung S4, one flat screen television all valued at Kshs 141,000/- the property ofHon. Philip Galma Godanaand immediately after the time of such robbery killed Hon. Philip Galma Godana .

2. In count II, they were charged with a similar offence the particulars being that on the same day at the place while armed with similar weapons robbed Balla Galma Godana one laptop male Compaq CQ56 valued at Kshs 42,000/-, one mobile phone make LG G3 IMEI 355673068047328 valued at Kshs 70,000/-, one mobile phone make NOKIA X2-01 valued at Kshs 8,000/-, one APPLE IPOD SHUFFLE valued at Kshs 8,000/-, all valued at Kshs 128,000/- the property of Balla Galma Godana and immediately after the said robbery threatened to use actual violence to the said Balla Galma Godana. In the alternative, they were charged with Handling Stolen Goods Contrary to Section 322(1) as read with Section 322(2) of the Penal Code, particulars being that on the 17th day of February, 2015 at Pats Mobile Accessories and Repair Shop, Kariokor Trading Centre within Nairobi County, they, jointly otherwise in the course of stealing dishonestly assisted in the disposal of mobile make LG G3 IMEI 355673068047328, knowing or having reason to believe them (sic) to have been stolen or unlawfully obtained.

3. In Court III the duo faced a similar charge of robbery with violence the particulars being that on the same day and place as the main charges above, while similarly armed, they robbed KULE ABDUBA IRGO cash Kshs 10,000/-, one mobile phone make SAMSUNG S3 MINI valued at Kshs 20,000/- and one bottle of perfume valued at Kshs 40,000/- all valued at Kshs 70,000/- the property of KULE ABDUBA IRGO and immediately after the said robbery threatened to use actual violence to the said KULE ABDUBA IRGO.

4. In Count IV, they similarly faced a charge of robbery with the violence the particulars being that at the same time at the same place while similarly armed, they robbed ORGE GALMA GODANA, one mobile phone SAMSUNG S4 valued at 65,000/- and one laptop make Toshiba Satellite valued at Kshs 38,000/- all valued at Kshs 103,000/- the property of ORGE GALMA GODANA and immediately after the said robbery threatened to use actual violence to the said ORGE GALMA GODANA.

5. The accused pleaded not guilty to all the said counts.

6. In support of its case, the prosecution called a total of 11 witnesses.

7. According to PW1, Godana Orge Galma, on the night of on 13th February, 2015 she arrived home from work at 8:00pm, had dinner with other family members who thereafter retired to sleep while she remained back, worked until 1:00am and thereafter went to sleep. Around 2:13am she was woken up by movements around the corridor. She called her sister, Galma Godana, PW2, and saw two men, one of whom roughed and woke her up threatening to kill her should she scream. According to the man, they had been told of millions in the house. The thugs, according to PW1, were 4 in number each of whom were armed with pistols. One of them took her phone and they ransacked the drawers on her bedside after which she was taken to the corridor as they demanded that she should show them where the millions were. Despite her telling them that they had only electronics in the house, they insisted that they wanted the millions and took her to her sister’s bed.

8. She called PW2 and informed her in Borana that they had been attacked. The attackers, who spoke in Swahili, ransacked PW2’s room while threatening to kill them with a bullet which they displayed. They then dragged PW2 but later left her and took PW1 to her parents’ room holding a gun on her back. She called her father and told him in Borana to open the door as they had been attacked. Her parents woke up and opened the door and switched on the lights. The attackers threatened to kill their father unless he showed them where the money was. All the while, they were all lying on the floor in one room which the ransacked. One of the attackers stood in front of her father with the gun while the mother pleaded with them to take the Subaru. One of the attackers then whispered something in the ear of the one who was holding the gun and they faced towards the left. They then heard a loud bang and her father fell. According to PW1, she was seated on the right side of her father. After that the attackers left.

9. PW1 then screamed calling her brother, and they locked themselves in her father’s bedroom and called the police and friends. In the meantime, they kept hearing loud bangs downstairs and after some time all went quiet. She stated that they were assisted by a doctor, Dr Bokesse. When the police arrived, they opened the bedroom. By then her father was bleeding on the ground. He was then taken to the Hospital but died at around 4:00 am.

10. It was her evidence that during this time the corridor lights and the lights in her sister’s room were on and she saw the attackers clearly as their faces were not covered and she talked to them for about 5 minutes and observed them well. According to her they were of chocolate dark complexion and her around her height. Though they had dark muffles, their faces were visible. It was therefore her evidence that she could recognise the attackers and identified the 1st accused as the one who was holding the gun in front of her father while the Appellant ransacked the house though she had not seen them prior to the attack. It was her evidence that she lost her Samsung galaxy and Toshiba laptop and family television, Samsung 40 inches.

11. In cross-examination, she stated that the robbery took place on the morning of 14th February, 2015 and she recorded her statement on 22nd February, 2015, 9 days later. According to her, her memory was still fresh. She insisted that in her statement she described to the police the attackers but this seems not to have been captured. It was her evidence that she was not present when the 1st accused was arrested and did not know when he was arrested. According to her the charge sheet indicated the estimated value of what she lost. She asserted that she saw the 1st accused when she was woken up though she had been woken by the sound of the movement. She however admitted that she was shocked and terrified but insisted that the attackers were not masked. Nothing was however recovered.

12. She explained that a house help and a watchman were outside the house and her brother and grandmother were sleeping downstairs. She insisted that she saw the 1st accused who ransacked her room and he had a black muffin. The Appellant also had a pistol. She however did not see the rifle.

13. PW2, Godana Balla Galma, was at home on 13th February, 2015 at 10. 00 pm having arrived from Nyeri. All her family members were at home and everyone went to bed save for the siblings. She however also went to bed at around 11pm leaving PW1 and her brother in the sitting room. In the middle of the night PW1 called her and informed her in Borana that there were thugs in the house. When she woke up, she saw the lights on and there were 4 people with PW1, all of whom had guns. The four told PW1 to sit down as the ransacked her room claiming that they had 1 million in the house. One of them removed the magazine and showed them the bullets telling them they were live bullets before returning it. The attackers then took her laptop and her phone and told her to open her father’s room and told PW1 to wake up their parents. She remained in her room as PW1 went to wake up their parents but saw them heading there while holding the gun on PW1’s head. After their parents opened the door one of the attackers returned and took the book she was holding and when she joined her parents she saw her mother, PW3, lying on the ground while her father and PW1 were seated down. She then told PW3 to sit down as two attackers remained at the door while the other two ransacked their father’s wardrobe and the bed, while saying that they had been told that there was a million in the house. When the father said no one keeps a million in the house, one of the attackers hit her head from the back using the butt of the gun. The person who had taken her phone asked if there was money in the house and she said she had none. The attackers then returned to the door and shortly thereafter there was a very loud gun and she saw their father bleeding from the head. After their brother had been called by PW1, the brother called the police but the police took a long time to come. She went to the window and called a neighbour doctor, Dr Bokesse and told her that their father had been shot. She then heard another gun shot and footsteps.

14. According to PW2, the thugs had not hidden their faces and they saw them very well. Though they had ordinary masks, their faces were not covered or hooded and there was light along the corridor and on the stairs.

15. She stated that they noticed that a window had been broken and the TV was missing as well as her handbag, her phone IMEI No. 355673068047328, her laptop Compact CQ 65 and money. According to her it was the Appellant who took her phone and he was armed with a pistol. He was the one who asked her if there was money in the phone and she observed him well as he ransacked her room and opened her parents’ drawers. He had a navy blue jumper while the 1st accused, who ransacked the wardrobe in their parents’ room had a red jumper and was also armed with a gun and insisted that they were told there was one million in the house. PW2 stated that she looked at him and he pointed the gun at her. She however did not see the person who hit her from behind or the person who shot their father though they were attacked by four thugs all of whom were armed.

16. In cross-examination, PW2 stated that he saw the 1st accused when he went to her room and that he was the only one with a red jumper and it was him who ransacked her wardrobe and her parents’ room. PW2 insisted that she gave the description of the attackers to the police as being of medium height, not thin, and that the person who displayed the bullet was either a Luo or a Luhya but was not the 1st accused. She however admitted that people do resemble.

17. In answer to the questions by the Appellant, she stated that three of the attackers had dark jackets while the 1st accused had a red jumper.

18. PW3, Kule Abduba, a retired trained teacher, testified that on 13th February, 2014 at 11. 30pm she was in bed and he was joined by her husband at mid night and they slept. At 2am, their daughter called her father and said in Borana that 4 men were holding her and threatened to kill her if the parents failed to open the door. When PW3 opened the door, there was light in the corridor and she saw 4 people each holding a gun while some had spotlights with one of them holding the girl. She was told to lie down which she did and her husband came and leaned on the wall while three of the attackers entered their room. Two of them ransacked the room while the third one remained at the door. One of them said that they knew the husband had 1 million which they wanted him to produce otherwise they would kill him. PW3 told them to pick all they wanted and leave. According to her, she looked at the one holding the gun and the one who was ransacking the house who kept on insisting that they would kill them as he could not understand why they had a Subaru yet they had no money. The husband informed them that there was some money in the Mpesa but they kept on searching. After an hour the one who was had the gun and who was searching on the right side moved and talked in low tones and after they left, she heard a loud bang and saw her husband fall over PW3. After the attackers had left, she told her children to call Dr Bokesse. It was her evidence that the attackers took some time in the sitting room collecting some things before leaving. When the police arrived her husband was already dead and they took him away. It was then that they realised that the TV was gone together with her mobile phone, Samsung, Kshs 10,000/- her husband’s phone, her personal goods, her perfume and computers. It was her evidence that the ordeal took one hour and as the attackers had only covered their hair and not their faces, she was able to see them clearly since she kept on talking to the guy who was holding the gun and asking for the one million who had a navy blue jumper with a dark trouser with sunken eyes. The other one who was searching the room who was close to her had a zebra jumper which he had removed and was tied on his waist.

19. PW3 identified two of the attackers in court. According to her the Appellant was the one who was searching the bags while the 1st accused was the one holding the gun and asking for one million. The two, she stated, were the ones who conversed before leaving the room. Though she was told to lie down she looked up to see them but after a while she sat up when one of her daughters told her to do so and she was able to identify them all through as she stared at them very well. In her evidence the 1st accused was tall, thin and had sunken eyes and was close to her.

20. In cross-examination by the 1st accused, she stated that she was not aware if PW2 gave a different version of what the 1st accused was wearing but she insisted that she was telling the truth.

21. In answer to the questions by the Appellant, the witness stated that she had not seen the accused before save for the day of the attack and in Court. She insisted that the 1st accused had navy blue jumper and a dark trouser while the Appellant had a red jumper on his waist. It was her evidence that nothing was recovered save for PW2’s phone which she had bought in Dubai.

22. PW4, Prof Guyo, a family friend to the deceased was on 14th February, 2016 informed that the deceased had been attacked and was rushed to Shallom, where he went to see him. As he was driving, he was informed that he had died and he was able to identify his body in the presence of police officers for the purposes of post mortem.

23. PW5, Cpl. James Olago, on 14th February, 2015 at 8am in the company of fellow police officers went to a residential house in Syokimau where he was shown a pool of blood in a bedroom with several scattered items. He dusted the crime scene where he lifted some finger prints from the TV Screen. He proceeded to Shallom Hospital Mortuary where the body of the deceased was with a neck injury and processed the body. He took 23 photos of the scene showing the damaged window, blood stains, scattered items and the body. On 16th February, 2015, he took the said photos and finger print impressions for printing and analysis and certified that the same were printed under his supervision and produced the same as exhibits.

24. PW6, Cpl. Paul Muchira, testified that he ascertained that phone number +25478xxxx was in use vide IMEI No. 3555670368047320 on 17th February 2015 at 9. 08 am in Ngara Area, Nairobi where the mast that covered Pangani, Kariokor and Kirinyaga Road was. According to him, the subscriber received SMS from the service provider through the server. The subscriber of the line was one Bernard Mutuva sim card No. 78925159712378 MSISDN – 78921597, ID No. xxxxxx and the registration date was 14th September, 2013.

25. In cross-examination, he stated that the Airtel number paired with the handset was No. 0789xxxx and that it was paired with serial no. 3556730680473280. He however stated that a sim card can be operated without a pin number if the subscriber chooses to do so through a pin, which is set by the subscriber, should be inserted to activate the line. Sometimes, lines have 0000 as the pin. In this case, the handset was used on 17th February, 2015 at 0908 hours and was in the phone for less than a second, the location being Ngara, Nairobi and the phone was not used again.

26. PW7, Cpl. Robert Kiprotich, who was attached to DCI Mlolongo was on patrol on the night of 13th and 14th February, 2015 when, at about 3am, he received a call from the DCIO informing him that there was a robbery at Syokimau. He proceeded to the area and upon reaching the house of Philip Godana, at Professor Court, he found other officers at the scene. They were taken round by the guard who told them that the thugs had jumped over the wall. They established that the sitting room window grill had been cut to allow one to gain access and they used the window to open the door and to gain access and open the. They were informed some thugs were still within the house and the occupants were scared. Using a password, to identify themselves, they started searching the rooms and found things strewn all over the place. In one of the locked rooms they found the occupants, 3 females and 1 male, therein who opened for them upon them altering the password.

27. Inside, he saw blood on the floor and the deceased was lying unconscious on the floor with an injury on the neck. After the OCS and D/DCIO Mlolongo arrived, they took him to Shallom Hospital. Though they searched they house, they did not find any of the thugs. He was however informed that the attackers took away a TV, 2 laptops, 5 mobile phones and other electrical appliances. Later the scene of crime personnel went to process the scene. He however came to learn later that two people were arrested after investigations. In his evidence, there was a spent cartridge at the scene.

28. PW8, PC Johnson Wanjohi, who was then based at the DCI Mlolongo and one of the investigations officer in the matter, was on patrol on the night of 13th and 14th February, 2015 when the OCS called him and informed him that there was a robbery incident at Professor’s Court at Syokimau. Upon rushing there in the company of Cpl Kiprotich and driver, Rotich, they found a guard who informed them that the robbers were armed and were still there. According to the witness, the house was locked but a window grill had been cut. Some officers entered through the window and opened the door and they entered the sitting room which they found in disarray. When they went upstairs, they found the family comprising of 4 females and 1 young man locked up in the master bedroom and upon their entry the found a man in a pool of blood with an open wound on the neck whom they took to the Hospital. They also recovered a spent cartridge on the floor which he exhibited.

29. It was his evidence that the injured man was Philip Godama, a former Moyale MP and was a licensed firearm holder of Ceska Pistol which he exhibited together with the magazine, firearm certificate and 12 bullets. According to him, the firearm was taken for ballistic examination. At about 6am the scene of crime personnel arrived. They also recorded statements from which they got the information that the attackers stole 2 TVs, 2 laptops plus mobile phones.

30. He stated that he wrote to Safaricom and Airtel to track the stolen phones whose serial numbers he disclosed. Later they got a report that IMEI Nos. 355673068047328 LG G3 mobile phone was in use with No. 0789xxxx registered in the name of Bernard Mutura. He also exhibited the request letter and the mobile phone box. According to him, the mobile phone was in use 3 days after the robbery. He was later informed by the DCIO Mlolongo, that 2 suspects, the accused, were arrested on 2nd June, 2015. He stated that the 1st accused upon being arrested led the police officers to the Appellant. Though the scene of crime was dusted for fingerprints, the witness was unaware if they matched the accused’s. However, at the time of his arrest, the 1st accused was in possession of the sim card plate for No. 0789xxxx serial no. 878925159712378. He exhibited the sim card plate, the photocopy of the ID No. xxxxxx, 1st accused’s Equity ATM Card, 1st accused’s Staff ID No. and IEBC Card. The said stolen phone, according to him, was used three days after the incident by the 1st accused though the 1st accused informed the police that it was the Appellant who gave him the phone and that he got it from the Appellant’s shop, who operated a phone repair shop. Thirty mobile phones which were recovered at the shop were however returned.

31. In cross-examination, he stated that no exhibit was recovered from the accused though the 1st accused’s line was used in one of the phones that was stolen during the robbery. Though the scene was dusted, none of the accused’s finger prints were found at the scene. In his evidence some of the attackers who numbered 5 were masked while others were not.

32. According to his information the attackers were armed with rifles though the 9mm cartridge is from a pistol. In his evidence the capacity of the ceska pistol is 15 bullets. Though the 1st accused informed them that he had been given the phone by the Appellant, the same was not recovered. However, there was call data to show that the phone was used. In re-examination he stated that there were 13 bullets.

33. PW9, IP Reuban Bett, a firearm inspector, testified that the items in question were examined by his colleagues, James Onyango and Flora with whom he had worked for 7 years and he was familiar with their handwritings. He therefore produced the said reports. Received were a spent cartridge with an exhibit memo form. According to the report, the spent cartridge was of calibre 9 by 19 mm and the same did not reveal any match but the cartridge was fired by a pistol. He produced the spent cartridge and the form as exhibits. He also had a report prepared by CIP Otieno in respect of Browning Pistol plus pistol magazine and 13 rounds of ammunition. According to the report, the pistol was in good condition as well as the rounds of ammunition. According to the report, the pistol did not have a crime record and did not match the spent cartridge at the scene. It was however not possible to tell when the gun was last fired.

34. PW10, also the arresting officer was instructed by the OC Special Crime, Mr Noah Katumo, to take over investigations of the case. According to his investigations, several items were stolen including phones and laptops which he set out. On 15th May, 2015 the officer in charge of SCPU instructed him to proceed to Machakos CCIO’s office and upon his arrival the CCIO shared with him information that the stolen phone was detected to have been used by Airtel G3 Imei 355673068047328, whose subscriber was 0789xxxx, Bernard Mutura. From the data they got his alternative Safaricom No. 0721xxxx and upon monitoring his movements, they arrested him on 2nd June, 2015 at Kariokor Market. Upon his arrest, the 1st accused confirmed that he was the owner of 0789xxxx which was lost in late March in the hands of one Samson Gitau who owned a mobile accessory shop. Upon being asked for the LG phone, the 1st accused informed them that some time in February he took his phone to the Appellant’s shop for charging and the Appellant gave him a phone to use which happened to be an LG phone.

35. On proceeding to the Appellant’s shop, the Appellant confirmed that he knew the 1st accused and that he gave the 1st accused a phone to use while the 1st accused’s phone was charging though the Appellant was unable to remember what phone it was as he did not keep records. Upon a search being conducted, several phones were recovered with tampered serial numbers which were suspected to have been stolen. The Appellant was arrested and taken to Mlolongo Police Station.  According to the witness, it was curious that only the 1st accused’s sim card was lost and not the phone.

36. PW11, Dr. Peter Ndegwa, the pathologist on 14th February, 2015 performed post mortem on the body of Philip Godana at Shallom Hospital and concluded that the cause of death was due to severe neck injuries due to a single gunshot at close range.

37. Upon being placed on is defence, the 1st accused, in his sworn evidence, stated that, being a maker of Maasai Sandals, on 10th February, 2015, he was called by a customer, Japheth Otieno, who gave him an order for 100 pairs of shoes which the 1st accused informed him would take 3 days at an agreed cost of Kshs 400/- per pair which the said customer paid and was to pick the same on 13th February, 2015. When the customer returned at 10am, he found the said order being processed. According to the 1st accused there was power problem at 2pm but the customer said he would wait for him to process the order. They waited till 8pm and since the customer said he would not travel at night, they agreed to go to the 1st accused’s house and the 1st accused would complete the order the following day. They arrived at Huruma at 9pm and slept at 11pm.

38. On 14th February, 2015, the night he was supposed to have been involved in the robbery, the 1st accused went to work at 6am and continued with the order and at 11am the order was ready. On 16th February, 2015, he went to work till 1pm during which time his phone was at the Appellant’s repair house at Kariokor Market. When he went to the shop, he found that the Appellant was unable to get the materials and he gave the Appellant 2 days to do so. In the meantime, the Appellant gave him a small phone, a techno with one line, to use. According to him, when he took his phone for repair, there was a young man called Mambo at the shop.

39. Since his phone that had a problem had slots for two lines, the 1st accused removed his Safaricom line, 0721xxxx, and put it in the phone he was given by the Appellant and left the Airtel line, 0789xxxxx, in the phone that was being repaired. Later when he went to collect his phone, he paid Kshs 500/- and the said Mambo was told to hand over his phone which Mambo did. However, the 1st accused’s airtime line was missing and when he asked the Appellant about it, the Appellant sought an explanation from Mambo but the line could not be traced. The Appellant promised to look for it but when the 1st accused returned on 19th February, 2015 to check it had not been traced.

40. When the 1st accused was arrested on 2nd June, 2015, he was informed that his Airtel line had been used in a stolen line and he informed the police how he lost the said line. Based on his information, the Appellant was arrested and the phones carried away. It was his evidence that no identification parade was conducted upon his arrest. He however stated that he never reported the loss of his line to the police as the Appellant had promised to locate it. In his evidence, the testimony by the prosecution witnesses that they saw him on the night of the attack was a lie.

41. DW2, Japheth Otieno, who was a trader in Maasai sandals confirmed that he was with the 1st accused in the 1st accused’s house on 13th February, 2015 when he went to pick his order and was unable to do so since the 1st accused had not finished the same.

42. DW2, Samson Gitau, the Appellant confirmed that on 16th February, 2015 at 1pm the 1st accused went to his shop as the 1st accused had a problem with his phone. He gave the said phone to his employee, Mambo to check and since he had no spares for the phone, the 1st accused, whom he had known from 2012, was told to return after 2 days. When the 1st accused requested him for a phone to use in the meantime, he gave him his techno phone and the 1st accused removed his Safaricom line and put it in the Appellant’s phone while the 1st accused’s Airtel line remained in the 1st accused’s phone. According to the Appellant, Felix Mambo, his employee from Makueni, repaired the 1st accused’s phone the following day and when the 1st accused went to collect the same on 18th February, 2015 at around 1pm, upon payment of Kshs 500/- Mambo was directed to release the phone by the Appellant and it was then that it was discovered that the 1st accused’s Airtel line was missing. Despite ordering Mambo to look for the 1st accused’s line, the same could not be found and the Appellant promised to hand it over later. In the Appellant’s evidence the said number was pin less.

43. According to the Appellant, on 13th and 14th February, 2015, he was not at Mombasa Road and had never been there till the time of his arrest on 2nd June, 2015 by two police officers in the company of the 1st accused. After his arrest, he told the said Mambo to close the shop and the said Mambo disappeared and has never been found.

44. In her judgement, the learned trial magistrate found that at the time of the robbery, the lights were on and PW1 clearly saw the faces of the robbers and stated they were of dark complexion and though their had muffles on, their faces were not covered. She positively identified the accused in court as part of the gang and described the attackers to the police. She also identified the 1st accused at Machakos CID Office. As for PW1 whose phone was lost in the process, she stared at the Appellant, who had a navy blue jumper, very well when he demanded for money. PW2 also testified that the 1st accused, who had distinguishable features, had a red jumper and she saw him very well as he was the first to enter the room. That the robbers did not cover their faces was, according to the learned trial magistrate, confirmed by PW3, who testified that there was light in the corridor and some robbers had spotlights. She also saw the robber in navy blue jumper whose eyes were sunken and had conversation with the robbers. This witness, according to the learned trial magistrate, saw the Appellant, who wore a red jumper, searching the bags while holding a gun while the 1st accused threatened to kill them.

45. The learned trial magistrate therefore found that the three witnesses were at the scene of crime and the lights were on so they saw the accused well and having described the distinguishing features of the accused and how they were dressed, she had no doubt that the said witnesses saw the accused and were able to recognise them since there was sufficient lighting despite the incident having taken place in the middle of the night. Though the accused covered their hair, they did not cover their faces and the said three witnesses were able to see their clothing, the complexion of their skin and distinguishing features on their faces like the sunken eyes. The learned trial magistrate therefore had no doubt in her mind that the accused were positively identified as part of the gang that robbed and killed the deceased.

46. The trial court also found that based on the evidence of the said three witnesses the accused who were in the company of 2 others, armed with pistols and who threatened to kill if money was not released to them and actually killed the deceased after stealing properties form the house, the ingredients of the offence of robbery with violence were proved. She found that the 1st accused’s defence was a mere denial as the accused did not produce any documents in support of their trade. She therefore found the accused guilty as charged, convicted them accordingly and sentenced the 1st accused to served 40 years imprisonment for each of the counts, the sentences running concurrently. According to the learned magistrate, the reason for the disparity in sentences between the 1st accused and the Appellant who was sentenced to 10 years on each count was the fact that as opposed to the Appellant whose was simply ransacking the house and demanding for money, it was the 1st accused who pulled the trigger and killed the deceased.

Determinations

47. I have considered the evidence on record and the submissions. Before this appeal was filed, the 1st accused had filed before this Court Criminal Appeal No. E001 of 2021 in which he challenged the same decision. In that case I found that there were discrepancies in the evidence of PW1, PW2 and PW3 as regards the occurrences of that night. Based on the decision of the Court of Appeal of Nigeria in the case ofDavid Ojeabuo vs. Federal Republic of Nigeria{2014} LPELR-22555(CA)while appreciating that there were minor discrepancies in the evidence of the prosecution witnesses, I nevertheless held that such minor discrepancies are common. It was my finding that where an incident occurs in the middle of the night and the attack happens under the circumstances of shock and fear as was the case in the matter herein, one expects certain inconsistencies in the evidence of the witnesses. Such inconsistencies, may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. What the Court has to decide is whether such discrepancies are so fundamental as to cause prejudice to the Appelalnt or they are inconsequential to the conviction and sentence.

48. After subjecting the evidence adduced to fresh scrutiny, found that the said inconsistencies were not material enough to warrant interference with the decision.

49. I also found that when PW1 recorded her statement some 9 days after the incident, there is no indication that she disclosed the description of the attackers.  There seems to have been an attempt to conduct identification parade but eventually it was agreed that the evidence relating to the said parade would not be admissible. Accordingly, the Court was denied the opportunity of verifying whether the witnesses could identify their attackers before they testified in Court and the circumstances under which the said parades took place.

50. I further found that although it was indicated that there was light, there was no inquiry as to the quality of the light. For example, how powerful were the lights and what was the colour of the bulbs or tubes? These are matters that ought to have been gone into considering the fact that the evidence of identification parade had been discounted and the matter was simply one of dock identification.

51. Though the prosecution could still have proved its case based on circumstantial evidence, the 1st accused, whose phone line was connected to the use of the stolen mobile phone, explained that he had taken his phone, with dual sim card slots for repair to the Appellant’s shop and since the repair could not be done the same day, the Appellant lent him another phone, a single slot sim card phone in which he inserted his Safaricom line leaving the Airtel line at the Appellant’s shop in the custody of one Mambo, an employee of the Appellant. However, when he went to collect his phone, the Airtel line could not be traced and later the said Mambo disappeared. This evidence was corroborated by the Appellant.

52. In this case, the appellant explained the circumstances under which the 1st accused went to his shop and the circumstances under which he was arrested as a result thereof. The Appellant offered an explanation which, if true, may well have exonerated him from the offence in question. There was no evidence to rebut that explanation. Accordingly, by his explanation he created a reasonable doubt on the prosecution case.

53. In Court Criminal Appeal No. E001 of 2021, after a consideration of the totality of the evidence adduced before the trial court and subjecting it to a re-evaluation I found that the conviction of the 1st accused was unsafe. Similarly, as the circumstances were substantially similar, this appeal succeeds, the Appellant’s conviction is set aside and the sentence against him quashed. He is set at liberty unless otherwise lawfully held.

54. It is so ordered.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 23RD DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

In the presence of:

Appellant in person

Ms Njeru for the Respondent

CA Susan