Stanley Obaga v Republic [2017] KEHC 1337 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU

CRIMINAL APPEAL NO. 114 OF 2016

BETWEEN

STANLEY OBAGA ………..…………………………………………………..… APPELLANT

AND

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

(Being an appeal from the original conviction and sentence of Hon.E. Muleka, SRM dated 24th October 2016at the Senior Resident Magistrate’s Court at Hamisi in Criminal Case No. 97 of 2016)

JUDGMENT

1. Before the subordinate court, the appellant, STANLEY OBAGAfaced a charge of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars were that on 5th January 2016 at Salongo Sub-location in Sabatia District within Vihiga County jointly with others not before the court, while armed with pangas and rungus robbed AGNES MUHONJA of her cash Kshs. 6,600/-, 5 litres of paraffin and a panga valued at Kshs. 1,000/-. He denied the charge and after the trial, he was convicted and sentenced to death.

2. The appellant now appeals against the conviction and sentence. In his petition of appeal, the appellant attacked that judgment on the ground that the trial magistrate relied on recognition without considering that the source of light was not properly established. He contended that no exhibit was found connecting him to the incident. He further stated that the evidence against him was contradictory and unsatisfactory and that his defence was not considered. The appellant amplified these grounds in his written submissions.

3. The respondent opposed the appeal and filed written submissions. The thrust of the appellant’s submissions was that the prosecution proved the offence to the required standard. As regards evidence of identification, the respondent submitted that the circumstances under which the appellant was identified were favourable for positive identification and free from the possibility of error as there was sufficient light. It was the respondent’s further submission that he was recognised by PW 2 who knew him.

4. As this is the first appeal, I am required to evaluate the evidence afresh and reach an independent conclusion as to whether or not to uphold the conviction (see Njoroge v Republic [1987] KLR 19). This exercise calls for me to set out the evidence as it emerged before the trial court was as follows.

5. The circumstances of the case were that on the night of 5th January 2016, Agnes Muhonja (PW 1) was asleep when she heard some people, who identified themselves as police officers, knocking her door. She woke up, put on the lights and went to the door. When she opened the door, she saw the appellant with a panga and rungu. He was also with another person and when they came in, they demanded money. She gave them Kshs. 6,600/-. They also took a matchbox, paraffin and her clothes. When the assailants left, they locked her in the house. She had to dig out part of the wall to go out and open the door whereupon she raised alarm. When she came out she found her son, McDonald Imbuga (PW 2) had been tied with a stone on the head. She untied him and in the morning they went to report the incident to the police.

6. PW 1 testified that when she reported the appellant to the Assistant Chief, she described him as having a scar on his mouth. She told the court that although she did not know him and had not seen him before, she knew his father as a pastor.  In cross-examination, PW 1 told the court that there was electric light in the house and she was able to identify him because of the scar.

7. PW 2 testified that on the same night, he heard the appellant knock his door and identify himself as a police officer. He stated that the security lights were on and he could see the appellant who was armed with a panga and four other people. They ordered him to lie down and tied improvised weight lifting stones on his back. PW 1 came to untie him and in the morning they went to record their statements at Chavakali Police Station. PW 2 stated that, in his statement, he recorded that he knew the appellant as a neighbour and was able to recognise him through the security light.

8. Corporal Paul Mutua (PW 3), the investigating officer, told the court that PW 1 came to Chavakali Patrol Base on 5th January 2016 and reported that she had been robbed at night by persons who identified themselves as police officers. He testified that PW 1 told the Assistant Chief, she knew where the appellant came from and the appellant was arrested by the Assistant Chief.

9. The Assistant Chief of Kisutum Sub-location, Hudson Sandagi Majanga (PW 4) recalled that on or about 24th January 2016, he received information that the appellant had robbed PW1. He went to the appellant’s house, found him and arrested him.

10. When put on his defence, the appellant testified that he bought a tree from PW 1 but did not pay her in full leaving a balance of Kshs. 2000/-. He stated that PW 1 reported to the police and they both went to Kilingili Police Station where they agreed that he would pay the balance in instalments. He was subsequently arrested by the Assistant Chief.

11. The ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of Oluoch v Republic[1985] KLR 549where it was held:

Robbery with violence is committed in any of the following circumstances:

(a) The offender is armed with any dangerous andoffensive weapon or instrument;or

(b) The offender is in company withone or more person or persons;or

(c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………”[our own emphasis].

12. The use of the word ‘or’in this definition means that proof of any one of the above ingredients is sufficient to establish an offence under section 296(2) of the Penal Code.

13. I am satisfied that from the evidence I have outlined, the prosecution proved the elements of robbery with violence. The testimony of PW 1 was clear that she was robbed by 4 people who were armed with rungus and pangas. They took her money, paraffin and panga and locked her in her house. Her testimony of the robbery was corroborated by that of her son, PW 2, who was robbed the same night.

14. The main issue for consideration in this appeal is whether the appellant was identified as the assailant. The prosecution case was grounded on direct evidence of identification in difficult circumstances. In Wamunga v Republic[1989] KLR 424 the Court of Appeal warned that;

[W]here the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be the basis of a conviction.

Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him (see Maitanyi v Republic[1986] KLR 198and R v Turnbull [1967] 3 ALL ER 549). The Court of Appeal was categorical in Kiarie v Republic[1984] KLR 739, that reliance on such evidence of identification must be “absolutely watertight”to justify conviction.

15. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable than identification of a stranger (see Anjononi & Others v Republic[1980] KLR 59). But in Wanjohi & 2 Others v Republic[1989] KLR 415, the Court of Appeal held that, “recognition is stronger than identification but an honest recognition may yet be mistaken.”

16. Both PW 1 and PW 2 testified that they recognised the appellant through electric lights though they did not describe the nature of light, whether it was close or bright to enable the court make an appropriate assessment. Although PW 1 and PW 2 stated that they knew the appellant and that he was a neighbour, it is not clear why it took two weeks to arrest a person who was described as a neighbour and who was clearly well known. Moreover, PW 4 did not state who informed him that the appellant was involved in the robbery. In these circumstances, I cannot say that the circumstances of recognition were free from the possibility of error.

17. For the reasons I have set out, I allow the appeal, I set aside the conviction and sentence. The appellant is set free unless otherwise lawfully held.

SIGNED AND DATED AT KISUMU

D.S. MAJANJA

JUDGE

DATED and DELIVERED at KAKAMEGA this ___15th _____ day of November 2017.

R. N. SITATI

JUDGE

Appellant in person.

Mr Ng’etich, Senior Prosecution Counsel, instructed by the Office of Director of Public Prosecutions for the respondent.