Samson Wekesa v Republic [2016] KEHC 4586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL CASE NO. 62 OF 2014

[Arising from judgment of R.B. Ngetich  [Chief Magistrate] in Bungoma CMCR’ s criminal case No. 681 of 2013  delivered on 11th June, 2014]

SAMSON WEKESA alias WICKY………….….......…. APPELLANT

VERSUS

REPUBLIC …………………………………….……RESPONDENT

JUDGMENT

1. This is an appeal arising from the Judgment of R. B. Ngetich Chief Magistrate in C.M.C Criminal Case No. 687 of 2013 where the accused was faced with  two counts.

1st  count was robbery with violence; contrary to Section  296 (2) of the Penal Code and a 2nd count was,  being in possession of narcotic drug contrary to Section 2 (a) of the  Narcotic Drug and Psychotropic Substance  Control Act No. 4 of 1994.  The appellant was acquitted on the 2nd count but convicted on the 1st and sentenced to death.

2. The particulars of the offence in the first count were that on the 16th of April 2013 at  Mayanja Sub-location  Kibabii location within Bungoma County the accused jointly with others before court  while armed  with a Maasai sword and a screw  driver  robbed  Bevelyne Kituyi of Kshs. 8,000/=, one radio, two  mobile phones; all valued at kshs. 21,110/= and at the time  of such robbery he  threatened  to use actual violence to the said Bevelyne Kituyi.

3. Being dissatisfied with the  judgement  the appellant preferred this appeal on the  following grounds

The trial Magistrate  erred by considering  extraneous matters.

The trial court failed to analyze the  evidence on record.

Prosecution evidence was  insufficient and contradictory.

No medical evidence  to  establish any act of violence.

The sentence was harsh and excessive.

4. This being the first appellate court, it must re-consider the evidence afresh, examine and evaluate the same in order to  arrive at an independent conclusion  seeOkeno vs. Republic  [1973] E.A. 322.

5. The prosecution’s case in brief is that on the 16th of April, 2013 while PW1 and 2 were sleeping PW1 heard an unusual movement in the sitting room.  She lit a solar lamp and went into the sitting room where   she saw a person whom she identified as the appellant one Wicky carrying a torch, a sword and a screw driver. He asked her to   switch off the lamp and he then lit his torch. He ordered her to  give him money and mobile phones.  She gave him kshs. 8,000/= and 2 phones which property was valued at kshs. 21,000/=. He then went  to where PW2 slept  assaulted her and  asked for money.  He asked for money in her M-pesa account and since her phone battery had gone off he used  his battery  to see how much was in  her M-pesa account.  The two witnesses later  screamed attracting neighbors.  The next day PW1 & 2 saw the appellant drinking at the  neighbors and they called the police.

6. The onus of proving a  criminal case against an accused  solely  lies on the prosecution.  See Woolmington vs. Director of Public Prosecutions  [1935] A.C 462 and the issue  now before court is whether or not the appellant  herein robbed PW1 as alleged. The evidence of PW1 and 2 is that PW1  was robbed of 2 phones and money.  PW2  was assaulted by  the appellant  who was armed. In her evidence PW1 stated;

“I lit the solar lamp as I went to the sitting room. I found a person carrying a Maasai sword, screw driver and a torch. He had not put on the torch.  I saw him  using a lamp………. When I saw him   using the lamp light I identified him as Wicky……. Wicky is the accused in the dock.”

PW2  “While changing the battery in PW1’s phone, the accused  put on a torch in his  armpit and  light from the torch enabled me see his face.  I  identified him as Wicky.

Elsewhere in their evidence they say  they were known to him before as he drunk in the neighborhood.

It has been stated before that recognition is the best form of identification and the two were able by the assistance of  a solar lamp and  a torch  to identify the  intruder.  Was there a robbery.

In Johanna Ndungu Vs. R Criminal Appeal  no. 116 of 2015 the  ingredients of the offence of  robbery were set out  as follows;

i. The offender is armed with a dangerous or  offensive weapon or instrument or

ii. If he is  in the company of one or more  other person or  persons or

iii. 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.

PW2 says the appellant was armed with a sword, a screw driver and a torch. The sword and screw driver are no doubt dangerous however PW2 in her evidence goes further to say that the appellant   pointed a gun at her.  This piece of evidence does not support the  charge neither is it corroborated by the evidence of  PW1.  I find the evidence  that the accused was armed to be contradictory and unreliable in the circumstances. I also  find there was no evidence that the appellant was in the company of any other person.  Neither  was PW1 or wounded.  PW2 says she was slapped and a gun  pointed at her. PW1 on the other hand says the appellant had threatened to kill her with the Somali sword;  If she screamed.  She stated that she saw PW2  being slapped.  However there was no proof of injuries sustained though  it is simply  the word of  PW1 against  the accused person.

I  do not find the  evidence of  PW2 to be a credit worthy.   PW2 alleged to have seen a gun which is not mentioned by  PW1.  Secondly the  prosecution  did not make any recoveries of the items stolen, neither the phones nor the money.

It is my view against the above background that base only on the evidence of PW1 the prosecution did not lay sufficient proof to the required  standards to sustain  the charge of robbery with  violence against the accused person and  therefore based on the evidence on record the conviction and sentence was not safe. Both are set aside.

The appeal succeeds. The appellant is set free unless otherwise lawfully held.

DeliveredandDatedatBungomathis 26th  day ofMay,  2016.

ALI-ARONI

JUDGE.