SAMUEL NGIGI MBURU v REPUBLIC [2006] KEHC 1251 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI

Criminal Appeal 386 of 2003

SAMUEL NGIGI MBURU …………………..............................................................……………APPELLANT

Versus

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

( An  appeal from the judgment of G.K. Mwaura, Senior Resident  Magistrate  dated

14th October, 2003;

In

Criminal case No.  1095 of 2002 of the Senior Principal Magistrate’s  Court, Muranga.)

JUDGMENT

The Appellant  was charged jointly with five other persons with the offence of robbery with violence contrary to Section  296(2) of the Penal code  in two counts.  Particulars  of the first count were that on the night of 20th and 21st August, 2002 at Kahatia Market in Muranga District, Central province, the Appellant jointly with his co-accused persons as well as others who were not before court, while being armed with dangerous weapons , namely firearms,  pangas and  axes, robbed Jim Geoffrey Gatimu one portable computer lap top, two mobile phones make Erickson T 28 S/No. 9567312802 and Siemens C 35 Serial No. 449191562829339, all valued at Kshs. 130,000/- using personal violence to the said Jim Geoffrey Gatimu .

In count two the victim of a similar robbery on the same date at the same market was Nelson Kimani who was robbed a wrist watch, make, G.K. Calvin Klein  valued at Kshs.1,500/-.

There was an  alternative  count of handling  stolen  property  contrary to Section 322 (2)  of the Penal Code concerning  the Siemens  Mobile Phone, but the Appellant  was convicted  of robbery in each of the two main counts  which the Magistrate  reduced from Section  296(2)  to Section 296(1) of the Penal Code  and therefore  sentenced  the Appellant  to ten years  imprisonment  on each count and ordered that the sentences  run concurrently.  His  co-accused were each acquitted.  Appellant  appealed against his conviction and sentence  and although warned of the danger of proceeding with his appeal because  if unsuccessful  the sentence could be enhanced, the Appellant  decided to go on with his appeal.  He was represented by Mr. Mwangi, Advocate, while the State was represented by Mr. Orinda, the Provincial State Counsel.

The evidence which led to the conviction  of the Appellant  was possession of the Siemens  Mobile phone which possession , in itself  is not in dispute .  What is in dispute is the place at which the  mobile phone was found  and ownership of the said phone.  Otherwise  the learned trial Magistrate  considered the rest of the evidence  and rejected it.  That was why she acquitted all the other accused  persons.  Briefly the evidence  was as follows:

Jim Geoffrey Gatimu, who gave  evidence  was P.W.1, was on duty as a night watchman at the premises  of Equity Bank at Kahatia when the robbers struck .  The robbers first went to the place where  Joseph Chege  was guarding  at about 1. 00 a.m.  They were in a white Nissan matatu and two other motor vehicles.  As Joseph Chege who was suspicious was informing some other watchmen about the presence of the  vehicles, he was approached by five people from the motor vehicle  three of them in police uniform and two of them in civilian clothes. The later  pretended to be under arrest  by the three people in police uniform, who seemed to be  on duty, trying to deal with a robbery they claimed  was taking placed in the town and wondered  why the watchmen  did not know anything about it.

The  three men in police uniform gave instruction  for all watchmen  in the area  to gather, asking specifically for watchmen at a near by Equity  Bank. That instruction having been obeyed , the three men  in uniform  commanded the watchmen to lie down facing down as the two men in civilian clothes now joined the three in police uniform, to  tie and confine the watchmen.  That was at Equity Bank which the five men broke into  by the use of a wielding flame and  after a while they dragged the watchmen into the bank  and  drove off.  The watchmen untied themselves and the matter reported  to the  Bank Manager and  Kahuro police station.  A group  of police officers visited  the scene and found  the robbers  had broken  the bank’s  main door and the inside  doors.  They had attempted  to break the safe but were not able. The bank Manager  reported that two mobile phones and a lap top computer were missing.

Nelson Kimani  who resided at a house that neighbours  the bank had  heard the breaking in going  on and when he went outside his house to check what was happening,  was caught by the robbers and taken to the bank joining the watchmen.  That  was when  his Calvin Klen watch was taken by the robbers.

Joseph Chege managed  to have noted the registration number  of the Nissan matatu and gave the number to the police who circulated that number  to  other police stations as KAG 583 P.

At 5. 00 a.m. Corporal John Mwangi who was manning a police  road block at Kabati received  the robbery report and at 7. 00 a.m. the suspect Nissan Matatu arrived at  the road block and  he stopped it and arrested the accused persons.  At the time of that arrest  the Appellant is said to have been in possession of two mobile phones, a Nokia and a Siemens C 35 and Cash Kshs. 4,000/- . Also  a charger  for the Siemens mobile phone.  The matatu  had two gas cylinders and a police badge.  The siemens  C 35 mobile phone was later identified by employees of  Equity Bank as one of the two stolen phones.

The  watchmen having told the police that they saw the robbers  and identified the robbers,  the investigating team organized  identification parades in which the Appellant was one of the suspects identified before he was charged jointly with other suspects as stated earlier.

In his defence the Appellant  told the trial magistrate that  on 20th August, 2002 he travelled  to Karatina Market  where he purchased  green grocers.  He  began his  journey back the following morning and boarded a matatu which was eventually stopped at Kabati road  block by police officers.  He told  the court that when he spent  the night at Karatina, he had given his goods to a lorry  to transport them to Nairobi  as he came  from Kiambu where he was a businessman.

At the road block at Kabati the police  took him to Kabati Police Station where the driver  and the conductor  were placed in police cells before the police did the same to him after questioning  about what he was doing.  Subsequently  taken to Muranga Police station and Sagana Police Station  where he was when the police  wanted  him to take them to his house in Kiambu  District  and they  had to take him to Muranga Police Station to take his house key from his wife who had been left in the police cells at Muranga.

He got the key and  he took  police officers to Kiambu where his house  was.  The police  searched the house and took a phone handset and its charger.  The phone  was siemens  mobile  phone.  The Appellant  was retuned to Muranga Police station.  That was on 22nd August, 2002.

He said he was held at Muranga Police  Station for about 10 days during which period  his wife was released by the police.  She went  home and brought  the siemens  phone receipt  which the Appellant gave to the investigating officer who told the Appellant   that it was not his job to take that receipt  as the Appellant  had to show it to the court himself.  The Appellant  said he was talking about  the siemens  mobile phone  then exhibit  8 before the  trail Magistrate.  He told the court he had bought it on 5th May, 2002 from Excellent Mobile Telecommunications at Trade centre.  He said the receipt showed the  serial number was 449191562829339. He said  he bought it for Kshs.7,950/- . But he  had not acquired a line for the phone as he had only bought the handset.

The Appellant  had the receipt in court and showed it to the court with the serial number  449191562829339 recorded.  But it was not produced as an exhibit  as counsel  defending the Appellant somehow  decided not to produce  it.  As the  Appellant  made his defence unsworn, he was not cross examined.

Corporal John Mwangi under whose command the police stopped  the Nissan matatu vehicle KAG 583 P  at  Kabati did not search on the spot  the six people  he said he arrested .  He  ordered them out of the matatu and locked them in a police land rover which took them to Kabati Police station where they were searched  and the recoveries made.  He gave evidence as P.W.12 and told  the court that he searched the six people  he had arrested from the suspect matatu after he had taken them to Muranga District  C.I.D. office and recovered the items recorded against each suspect.  From the  Appellant, he searched and recovered two mobile phones, a Nokia and a Siemens C 35 and Kshs.4,000/-. The two phones were in court  reflected in an inventory list P.W.12 said had prepared and produced it as exhibit 21.  It contained what P.W.12 said was recovered  from each accused person  and according to that evidence, other mobile phones  and amounts of money were recovered  from other accused persons in the case.

By the time of the trial , the motor vehicle and two cylinders  claimed to have been on the motor vehicle under the seats were at Muranga Police Station and became exhibits 38 and 39 respectively. Also  the badge and four torches – the badge  from the floor too.

Serial numbers which each cylinder had was not recorded in P.W.12’s inventory list exhibit 21.  Numbers not also in the OB  report written by P.W.12.  The OB report  said the search was done  by Report Personnel at the police station.

Concerning  the Siemens phone  and the charger attributed to the Appellant, P.W.12’s record in the OB did not give number of the phone and did not give descriptions of the charger.

This witness did not admit having seen another matatu Reg. No. KAK 279 G at the road  block on that day at the same time he stopped and detained the matatu he alleged the accused persons  were found on.  He said that apart from the search  he did after being asked to do so at the Police Station, police officers on duty at the report office did another search.  But the OB record  said the search was by officers at the report office.

What P.W.10, Andrew Njake Karuri ,told the court is worthy noting too.  He  told the court that he was a brother  in law of one Stephen Macharia Muriuki, a branch manager of Equity Building Society at Kabati; and that on 21st August, 2001 as a visitor  of his said  brother in law, the brother in law sent him and he went and bought a siemens  mobile phone C 35 for Kshs.8,500/- . He bought it in his name and was issued with a receipt .  But took the phone to his brother in law same  day with connection  documents at Kabati having bought it at Nairobi where he had bought it from a stall known as FONETECT  Communication.  This witness  did not agree with the suggestions that by then such a stall was not in existence at that place.

The then Equity Bank, Kabati  Branch Manager gave evidence as P.W.11 saying his name was Stephen Macharia Mwangi.  He supported what P.W.10  had told the court but could not give the serial number.  The phone was given to him and used it until he left it to the incoming Branch Manager  as P.W.11 went  on transfer to Nairobi in February, 2002.  He did not explain why he  had to send his brother in law, apparently not an employee of  Equity Bank then, to buy the phone  and buy it in his (P.W.10’s) name, instead of sending a co-employee in the bank to buy the phone.  Evidence therefore came  out that the phone was bought  by the  bank and belonged to the bank in disregard  of the fact that the phone  was bought in the name of P.W.10.

The mobile phone in question  was not in possession of P.W.1 Geoffrey Gatimu who did not even seem to have known it.  He only learned after the robbery that some mobile phones were among  the things that the attackers  had taken away from the bank premises.  Hence claim to identification of the phone found in the evidence of P.W.10, P.W.11 only the latter  mentioning  marks P.W.10 did not seem to have seen as P.W.10 relied  on his name  in the  cash sale receipt which was not produced  in the evidence  after the defence  counsel wanted the maker of the receipt  to produce it and the prosecution failed to bring  the maker to give evidence to produce the receipt.

Going back to the defence case, the evidence  of D.W.1 Stephen Mwangi  Murimi, prison warder No. 21513 from  Muranga G.K. Prison,  is worthy noting.  He came as a defence witness and told the court that on 21st January, 2003, he was allocated to go to the police car park to supervise  cleaning of the park by prisoners.  He took prisoners to the car park and at 10. 00 a.m. a police CID officer requested that they assist to push a  Nissan matatu Reg. No. KAG 583 P  to an open area and they did so.  An hour  later at the request of another police CID officer, the witness  and his prisoners assisted the CID officer  to move gas cylinders from a store to where the Nissan  matatu was.  The prisoners were asked to place the gas cylinders on the matatu sliding door and they did so before a  camera man went and took some photographs.

Thereafter  prisoners were asked to place the cylinders on the floor  lying down and once more some photos  were taken.  Prisoners  were then asked to lay down the cylinders in front of the vehicle and they did so and photographs  taken.  After that,  they took the gas cylinders  back to the store.

This  witness identified the Nissan matatu in photograph before the court and were also photos of gas cylinders produced as exhibits 1 to 7 although  given the date 21st  August, 2002 instead of 21st January, 2003; and in that connection  we note the evidence of police constable  Albert Kiaru of the DCIO’S Office Muranga  who gave evidence  as P.W.9 .  He was the photographer and told the court he had taken the photographs  on 21st August, 2002  at Kabati police station, not Muranga  police station.  This witness  told the court during cross examination that he took some photographs  at Muranga police station on same date.  This was after defence counsel  had put him to task and shown that  some photographs  had buildings at Muranga Police Station.

Although he had said in his evidence in chief that he found gas cylinders in the motor vehicle, during cross examination he said it was  accused persons who were told by the police to put those cylinders  in the motor vehicle for photographing and that it was the DCIO who was  directing what was to be done.  The DCIO  was the investigating officer in this case.

Photos did not show any marks on the two cylinders . The witness  who started by saying that all photographs were taken at Kabati police station  came, in the middle of  cross examination, to talk as if all photos were  taken at Muranga Police station and ended up in re-examination talking as if some photographs were taken  at Kabati and others at Muranga.  He gave no explanation  why that had to be so,  the same motor vehicle  and cylinders being moved between those two police stations.

Although more may be said in this case the position, as we find it is that the Appellant  was convicted on the basis of the evidence relating  to the Siemens  mobile phone only.  That  is why he was the only person, out of six accused persons, convicted.  He was convicted after the learned trial  Magistrate had rejected  the rest of the evidence.  Concerning  the evidence of identification, the magistrate said:

“ I have  already found that the

evidence on the circumstances  that favoured a good identification is not good enough.  The descriptions given were also not very helpful.  Looking at this evidence  very objectively there is serious  doubt whether  the watchman could identify  the robbers later as they stated in court.  Identification  parades were carried out later  by 4 police inspectors. --------- I have carefully and cautiously evaluated the testimonies  of the inspectors.  Each of them went to the police station where they were to carry out the parade and met the exercise  already organized by offers from the D.C.I.O.’s office Muranga.  I have noted that the  suspects  had been in cells for about  one week.  Two of them  have complained that the parade witnesses  were made to see them before the parades.  This complaint  regarding the unfairness of the parades  was actually supported by  P.W.8  who said that he was told the person he was to go and pick in the parade.  He stated that  they were taken  to the various police stations in a police land rover.  They were all along  on those trips  with a CID officer known  as Kariuki who was directing  them on who they were to pick in the parade.”

The learned Magistrate  quoted P.W.8 as having said:

“ I agree that on the way we discussed what was to take place.  Kariuki told us about the persons we were to see.  He told me that I was to pick a dark person.  I knew that I was to pick a black man and I did so.”

The Magistrate concluded:

“ This evidence  casts serious doubts on the propriety of the parades. I must absolve the police inspectors who were involved from any blame  as they met everything  already arranged by the CID team.  I however find that the identification  evidence has been discredited  and is absolutely worthless.”

Concerning  what went on at the robbery scene, the trial Magistrate  rightly observed that there was no evidence  that the matatu  registration number KAG 583 P sighted  in Kabati town on the night of the robbery was driven to Equity Bank or drove away with the robbers.  That vehicle  seemed to have been engaged in normal matatu movement  and business  of packing and dropping passengers until it was stopped. The magistrate rightly  thought  the police  badge and the two gas cylinders may have been with people who had alighted  before the matatu  was stopped.  He held  the view that  there was nothing to tie the matatu with the robbery.

With regard to identification  of the  robbers at the scene of the robbery, the Magistrate also considered  the fact that it was at night and that the evidence  about light at the scene was not elaborated by witnesses  who were frightened as they were being frog matched without the opportunity to even flash their torches  and subsequently ordered to lie on the  ground with faces on the ground.  People who  could not pin point the robbers who were in police uniform  and the robbers  who were in civilian clothes  and could not also know  colours of the clothes those people  had.  But it was easier to remember cloth colours than to remember  human faces.

All that was rightly said with respect  to all the accused persons  including  the Appellant. But  when it came to the evidence relating to the Siemens  mobile phone, the learned  trial Magistrate  believed  what Corporal  Mwangi, Corporal Anjelo, the former Equity  Bank Kabati Branch Manager  Mr. Stephen Macharia Mwaniki  and his brother  in law Andrew Njage Kariuki said.  Although the Magistrate  considered  the defence of the Appellant,  we feel he did not consider it sufficiently.

This is a case where  the Magistrate  from what he had said earlier, must have seen that the credibility  of prosecution witnesses  was questionable especially police officers who would go as far as instructing  civilian witnesses what to say and do.  An inventory  register from Equity Bank containing  an entry  about the cell phone may have been before the court as an exhibit  and mobile telephone number 072871669 may have been assigned to the Bank.  But bearing in mind  prosecution witnesses had a credibility  question, what was there impossible  for them to accomplish if they wanted  a conviction ? If the bank had a phone  number for that phone, yet the phone had been bought in the name of Andrew Njage Kariuki a private person not even employed by the bank, why should  that particular  phone not belong to the Appellant simply because  the Appellant  did not have a phone number for that phone?

If the seller of the phone was not brought in the court to give evidence whether or not his stall existed during the time that phone was sold, the burden of proof was upon the prosecution and not upon the Appellant as the trial Magistrate made it to be.

This is a case where Corporal  John Mwangi did not only arrest the six accused persons, but also arrested other people  like the wife of the Appellant, but the prosecution presented the case in court ,in the way they did  for the case to appear as if the accused persons were the only people found in motor vehicle  Reg. No. KAG 583 P and therefore  the only people  arrested in connection with the alleged robberies.

In our view, the prosecution  did not succeed in proving this case against the Appellant  beyond reasonable  doubt  and the Appellant  ought not to have been convicted.

Accordingly, we do allow this appeal.  Quash the conviction of the Appellant on each count and set aside the sentences imposed.  The Appellant  be released forthwith unless lawfully detained in some other cause.

Dated this 26th day of September, 2006.

J.M.KHAMONI

JUDGE

H.M. OKWENGU

JUDGE