Stephen Biko Onyango, Samuel Wagura, Malvin Maro, Nathan Muthiani & Erick Salim v Republic [2015] KEHC 7865 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NOS.65, 66, 67, 68 & 69 OF 2012

(An Appeal arising out of the conviction and sentence of T.OKELO - SPM delivered on 28th May 2014 in Makadara  CM. CR. Case No.6228 of 2011)

STEPHEN BIKO ONYANGO….....….…………………………………………………1ST APPELLANT

SAMUEL WAGURA……………………………………………………………………….2NDAPPELLANT

MALVIN MARO…………………………………………………………………………….3RDAPPELLANT

NATHAN MUTHIANI…….….…………………………………………………………..4THAPPELLANT

ERICK SALIM………..…..……………………………………………………………………5THAPPELLANT

VERSUS

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

JUDGMENT

The Appellants, Stephen Biko Onyango (1st Appellant), Samuel Wagura (2nd Appellant), Malvin Maro (3rd Appellant), Nathan Muthiani (4th Appellant) and Erick Salim (5th Appellant) were charged with two (2) counts of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offences were that on 25th December 2011 at Sinai Estate Syokimau, Nairobi County, the Appellants, jointly, while armed with a dangerous weapon namely a toy pistol robbed Joram Otwori Makori and Christine Syombua of motor vehicle registration number KAQ 620 P Mitsubishi Lancer valued at Kshs.500,000/- and mobile phone make Nokia Serial No.356998046226135 valued at Kshs.4,000/- and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said Joram Otwori Makori and Christine Syombua (hereinafter referred to as the complainants). The 1st Appellant was further charged of being in possession of an imitation firearm contrary to Section 89(1) as read with Section 34(1) & (2) of the Firearms Act. The particulars of the charge were that on 25th December 2011 at Jomo Kenyatta International Airport, the 1st Appellant was found in possession of an imitation firearm namely a toy pistol. The 5th Appellant was alternatively charged with handling stolen goods contrary to Section 322(2) of the Penal Code. The particulars of the offence were that on 25th December 2011 at Jomo Kenyatta International Airport, otherwise than in the course of stealing, the Appellant dishonestly retained one mobile phone make Nokia Serial No. 356998046226135 valued at Kshs.4,000/- the property of Christine Syombua knowing or having reason to believe it to be stolen goods. When the Appellants were arraigned before the trial magistrate’s court, they pleaded not guilty to the charges. The Appellants were found guilty in respect of the 2nd count of robbery with violence. They were sentenced to death as is mandatorily provided by the law. The 1st Appellant was convicted of the charge of being found in possession of an imitation firearm. He was sentenced to serve two (2) years probation.

The Appellants were aggrieved by their conviction and sentence. They each filed a separate appeal to this court. The separate appeals were consolidated and heard together as one during the hearing of the appeal. This is because the separate appeals arose from the same trial before the magistrate’s court. In their petitions of appeal, the Appellants raised more or less similar grounds of appeal. They were aggrieved that they had been convicted on the basis of the evidence of identification that did not stand up to legal scrutiny. They faulted the trial magistrate for relying on inconsistent and contradictory evidence of the prosecution witnesses to convict them. They took issue with the fact that they were convicted yet no evidence had been adduced by the prosecution witnesses to connect them with the crime. They were finally aggrieved that their respective defences had not been taken into account before they were convicted of the charges. In essence, the Appellants pleaded that the prosecution had failed to adduce sufficient evidence to support the charges brought against them. They were particularly irked that the trial court had shifted the burden of proof to the Appellants before convicting them. For the above reasons, the Appellants urged the court to allow the appeal, quash their respective convictions and set aside the sentences that were imposed on them.

Prior to the hearing of the appeal, counsel for the Appellants and the Respondent agreed by consent to file written submission. The written submissions were highlighted in court by Mr. Kiplagat for the Appellants and Ms. Ngetich for the State. Whereas the Appellants argued that the prosecution had failed to establish its case on the charges brought against the Appellants to the required standard of proof, Ms. Ngetich for the State was of the view that the prosecution had established its case to warrant the conviction of the Appellants by the trial court. We shall revert back to the arguments made by the parties to this appeal after setting out the facts of this case.

The complainants, PW1 Joram Otwori Makori and PW2 Christine Syombua are husband and wife. At the material time, they were resident at Syokimau Estate. They owned motor vehicle registration No.KAQ 620 P Mitsubishi Lancer. They testified that on 25th December 2011, they left their house at about 12. 30 p.m. to go out for lunch. PW1 had parked the motor vehicle outside their gate. PW1 entered the motor vehicle.  He waited for PW2 to lock the gate. PW1 testified that while waiting for PW2, he saw a group of five (5) men surround the motor vehicle. One of the men whom he identified as the 1st Appellant, pointed a pistol at him. He was ordered to surrender the motor vehicle. He was moved to the rear of the motor vehicle from the driver’s seat. One of the men accosted PW2. This man identified by PW2 as the 5th Appellant, slapped her and told her to keep quiet. PW2 did not heed this advice. She continued screaming thus alerting the neighbours who came to their rescue. PW2 testified that while screaming she was hit by a motorcycle which was passing by. She fell to the ground. The mobile phone which was in her possession fell to the ground. She testified that the 5th Appellant took the mobile phone and run away with it. PW1 testified that when PW2 raised alarm, the 1st Appellant instructed the 2nd Appellant who was seated on the driver’s seat to drive off the motor vehicle. Unknown to the robbers, the motor vehicle had a cutout mechanism. The motor vehicle stalled and could not move.

When the robbers realized that they could not succeed in their mission to drive off with the motor vehicle, they abandoned the motor vehicle and took off on foot. PW1 testified that while the robbers were running away, he chased after them. He managed to hold onto the jacket of the 4th Appellant. The 4th Appellant removed the jacket and left it with PW1. He left one of his shoes as he made good his escape. PW1 and PW2 testified that the screams for help alerted neighbours who came to their rescue. However, the five men made good their escape. PW1 called his brother PW3 Geoffrey Mogaka and his nephew PW5 Erick Ondari Nyabuto who went to their rescue. PW3 and PW4 were also residents of the same Syokimau Estate.  According to PW3, when he received the call from PW1, he left on a motorbike towards the direction that he was told the robbers had escaped to. He testified that when he reached the airport roundabout he met with a lady and inquired from her if she had seen five young men. She told him that the men had run towards the airport.

PW3 mobilized his friends who operated boda boda motorbikes within the area and gave chase. They saw the five men in an open field towards the airport. They gave chase and managed to arrest four of them. One of them was later arrested by the police within the same vicinity. It was PW3’s testimony that the five Appellants were arrested about one and a half (1?2) kilometres from the complainant’s residence. PW3 then called PW1 who arrived at the scene. PW4 IP Jacob Mureithi, then based at CID Mlolongo told the court that he was informed by the police based at Jomo Kenyatta International Airport that some suspects had been arrested by members of the public. PW4 went to the scene and found the Appellants had been apprehended by members of the public.

Shortly thereafter, the complainants arrived at the scene. They told PW4 that the Appellants had attempted to rob them of their motor vehicle. The complainants identified the Appellants as the persons who robbed them. A search was conducted on the suspects. A mobile phone which was positively identified to be the one that was robbed from PW2 was recovered from the 5th Appellant. The jacket that PW1 held onto when the robbers were making good their escape was handed over to PW4. Similarly too, one of the shoes that was left behind by one of the suspect was surrendered to PW4. PW4 noted that the 2nd Appellant was wearing the other shoe.PW1 told PW4 that it was the 1st Appellant who had the gun. Upon interrogating the 1st Appellant, PW4 testified that the 1st Appellant escorted them to a place where he had dropped the toy pistol. He recovered the toy pistol and produced it in evidence during trial.

It was the prosecution’s case that from the time the Appellants attempted to rob PW1 and robbed PW2 of her mobile phone, there was consistent and interconnected evidence of the complainants, PW3 and PW5 to the point that the Appellants were apprehended by members of the public. The prosecution therefore relied on the evidence of identification of the Appellants by the complainants and the recovery of the mobile phone and the toy pistol in the Appellants’ possession.

When the Appellants were put to their defence, they opted to say nothing in their defence.

This being a first appeal, it is the duty of this court to re-evaluate and to reconsider the evidence adduced before the trial court before reaching its own independent determination whether or not to uphold the decision of the said court. In doing so, this court is required to always keep in mind the fact that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect (see Njoroge –vs- Republic [1987] KLR 19). The issue for determination by this court is whether the prosecution proved its case on the charge or robbery with violence contrary to Section 296(2) of the Penal Code to the required standard of proof.

There are several issues that emerged for determination by this court. The first issue is whether the evidence of identification adduced by the prosecution witnesses was watertight and pointed to the Appellants, and no one else, as the persons who attempted to rob PW1 of his motor vehicle and robbed PW2 of her mobile phone. According to the Appellants, the evidence of identification adduced by prosecution witnesses was not fool proof since there was a break in the chain of events in the evidence between the robbery and the arrest of the Appellants. It was the Appellants’ case that after the robbery, the complainants lost sight of the robbers before PW3 and PW5 accosted them and accused them of being the robbers. In essence, the Appellants were saying that there was a break in the chain of events between the robbery and their arrest that raises doubt that they were the persons that robbed the complainants. On its part, it was the prosecution’s case that the narration of the chain of events pointed to no other persons other than the Appellants as the persons who robbed the complainants.

Upon our re-evaluation of the evidence of identification in this regard, we are convinced beyond any reasonable doubt that it was the Appellants who attempted to rob the PW1 and robbed PW2 of her mobile phone. The complainants described how they were accosted while they were outside their gate by a gang of five robbers. It was at 1. 30 p.m. It was therefore in broad daylight. There was sufficient light to enable the complainants be positive that they had identified the Appellants. The Appellants wore no disguises. The complainants explained the role that each Appellant played during the robbery. They testified that the 1st Appellant subdued PW1 when he pointed what PW1 believed to be a pistol at him. It was later established that what PW1 thought was a pistol was infact a toy pistol. PW1 testified that the 2nd Appellant attempted to drive off the motor vehicle after PW1 had been hustled out of the driver’s seat. PW2 testified that it was the 5th Appellant who robbed her of her mobile phone. He also attempted to restrain her when she screamed seeking for help from her neighbours. PW1 testified that when the Appellants were thwarted in their attempt to rob him of the motor vehicle, they run away. PW1 held onto the jacket that the 2nd Appellant was wearing. The 2nd Appellant also left behind a shoe as he was running away. The 3rd and 4th Appellants were identified at the scene by the complainants by the clothes that they wore.

After the robbers fled the scene of the robbery, PW1 called his brother PW3 and his nephew PW5 to pursue the robbers. PW1 told PW3 the direction that the robbers had taken. PW3 used a motorcycle to pursue the robbers. He saw the Appellants in a field near Jomo Kenyatta International Airport. He mobilized members of the public who pursued the Appellants before arresting them. On being arrested, the 1st Appellant showed the police the place where he had hidden the toy pistol. The 1st Appellant had a special knowledge of where he had hidden the toy pistol. The recovery of the toy pistol in the 1st Appellant’s possession corroborated the testimony adduced by PW1 in regard to how the 1st Appellant attempted to rob him of his motor vehicle. The 2nd Appellant was found with one shoe.  The other shoe, he had left at the scene of the robbery. That shoe connected him to the robbery. The 5th Appellant was found in possession of the mobile phone that was robbed from PW2.  That mobile phone was positively identified to belong to PW2.

Whereas this court agrees with the Appellants that there was a break in the narration of the chain of events from the time of the robbery to the arrest of the Appellants, the recovery of the toy pistol and the mobile phone connected the Appellants to the robbery. The physical description given by the complainants fitted the Appellants upon their arrest. We therefore hold that the prosecution established to the required standard of proof the evidence of identification. We are not persuaded by the contention of the Appellants that they were victims of mistaken identity.

Was there inconsistency in the evidence adduced by the prosecution witnesses? Upon evaluating the evidence adduced by the prosecution witnesses, we are not prepared to make a finding that the evidence adduced by the prosecution witnesses was haphazard or was riddled with inconsistences. We hold that any inconsistencies evident in the evidence adduced by the prosecution witnesses can be explained by the fact that each witness was narrating the events as he or she saw it. Taken into totality, there was consistence in the evidence adduced by the prosecution witnesses. Nothing turns on this ground of appeal.

As stated earlier in the judgment, the Appellants did not take up the opportunity availed to them by the law to explain why they were in the particular place at the particular time. They chose to say nothing in their defence. We hold that the evidence adduced by the prosecution witnesses stood uncontroverted. As regard whether the charge upon which the Appellants were convicted was defective, this court holds that the charge sheet was not defective. The charge cited the correct section of the law that defined the offence and the punishment (Section 296(2) of the Penal Code). The citation of Section 295 which is the descriptive section was superfluous in our view and did not affect the validity of the charge brought against the Appellants. Further, we hold that the ingredient of robbery with violence contrary to Section 296(2) of the Penal Code was established by the evidence adduced by the prosecution witnesses. That evidence established that the Appellants being more than one, robbed PW2 of her mobile phone and in the course of the robbery threatened her with a toy pistol. At the time the threat was issued, the complainants believed that the toy pistol was real. This threat enabled the Appellants subdue the complainants.

The upshot of the above reasons is that the separate appeals lodged by the Appellants lack merit and are hereby dismissed. Their respective convictions and sentences are hereby upheld. It is so ordered.

DATED AT NAIROBI THIS 22ND DAY OF OCTOBER 2015

L. KIMARU

JUDGE

G.W. NGENYE – MACHARIA

JUDGE