Yusuf Gitahi & Thomas Mbatha Musyoka v Republic [2019] KEHC 1968 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO.257 OF 2010

YUSUF GITAHI

THOMAS MBATHA MUSYOKA.................................................APPELLANTS

VERSUS

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

(Being  an appeal against the conviction and sentence from the original Criminal case No 2887 of 2008,

delivered on 5th May 2010 by Honourable T. Gesora S.R.M at Mombasa)

JUDGMENT

YUSUF GITAHI and THOMAS MBATHA (Appellants herein) were jointly with others not before court charged with robbery with violence  contrary to section 296(2) of the Penal Code. The particulars of the  offence were that;

“ On the 25th day of July, 2008 at Shanzu village in   Mombasa District of The Coast Province, the  appellants  jointly with Others, while  armed with dangerous  and   offensive  weapons  namely iron bar robbed  DENNIS MUSYOKA MALOMBE of one  motor cycle registration N.  KBB 387 N make King Bird  valued at Kshs  96,000/=and immediately before or immediately  after  the time of such  robbery  used  actual  violence  to  the  said DENNIS MUSYOKA MALOBE”.

The appellants were arraigned in court on 23rd September, 2008 whereby they pleaded not guilty to the charge and plea of guilty entered  for each one of them. The case proceeded for having and the appellants were convicted and sentenced to serve death sentences after being found guilty of the offence of robbery with violence contrary to section 296 (2) of the Penal code.

They were aggrieved by the said conviction and sentence hence they each failed their appeal on the following grounds.

The 1st appellant’s grounds of appeal are as follows;

(a) That  the learned Hon. trial magistrate erred in law and fact by  convicting and sentencing  him on reliance of the evidence  of  identification by recognition adduced by the complainant ( Pw1) and  his  comrade  without properly finding  out the circumstances which  prevailed at the said scene were not conducive to warrant positive  identification.

(2) That the sincere lawful loyalty by the complainant’s open  statement  or evidence acquitted him from the false allegations were  not taken home by the learned trial magistrate;

(3) That the learned Hon. Trial magistrate erred in law and facts by  failing to note that the doctor’s report was not produced by the   prosecution side.

(4) That the learned Hon. Trial magistrate erred in law and fact by  convicting and sentencing him without seeing that the prosecution did  not prove its case beyond reasonable doubt.

(5) That the learned Hon. Trial magistrate erred in law and fact by  unreasonably rejecting any sworn defence evidence which was  reasonable enough to cast doubt against the prosecution’s case.

2nd appellant’s grounds of appeal.

(1) That the learned Hon. Trial magistrate erred in law and fact by  convicting and sentencing him to suffer death without considering   that the prosecution charge was defective and this invariance for the   evidence adduced before court by the prosecution witnesses i.e  Pw1  does not support the particulars of the charge sheet.

(2) That  learned  trial magistrate  erred in law and fact by convicting  and sentencing him to death without considering that he was not  awarded a fair trial as required by the law under Article 50 (j) of the  constitution for he was not supplied with the witness statements of  (pw4) during the trial  contrary to what the law stipulates.

(3) That learned trial magistrate erred in law and fact by convicting and  sentencing him to death by relying on the recognition evidence of  single witness Pw1 without considering the same was not proved to the  standards required by the law hence unsafe to be considered to sustain  a proper conviction.

(4) That learned trial magistrate erred in law and fact by convicting and  sentencing him to suffer death without considering that section 57 (1)  (a) (b) (c ) (d) of  the Evidence Act was not considered.

(5) That the learned trial magistrate erred in law and fact by convicting   and sentencing him to suffer death without considering that the   source of his arrest was not established to have had any connection  with this offence in question for the informer who alleged to have led  the police officers to my arrest never testified to clear the doubt of his  arrest.

(6) That learned trial magistrate erred in law and fact by convicting and  sentencing him to suffer death without considering that the   prosecution did not prove their case beyond any reasonable doubt  hence section 109 of the Evidence Act, was violated.

(7) That learned trial magistrate erred in law and fact by not  considering my reasonable defence statement which was challenged  by the prosecution. The appeal proceeded for hearing on 20th July,  2017 and each appellants filed written submissions which they wholly  relied on except for brief highlight. The stat through M/s Mutau,  learned counsel, made oral submissions.

The 1st appellant urged the court to consider that he was not mentioned  in the first report (the investigation diary) by the report.  He also asked  that his defence, where he stated he was arrested while at work be  considered.

The 2nd Appellant submitted that in this case his name is Thomas Mbatha Musyoka and yet the complainant was referring to his as Tom. He stated that there is nowhere in the evidence   where the complainant  agreed with the owner of the vehicle that he engages him.

Ms Mutua, counsel for the state opposed the appeal and consolidated  the grounds of appeal set out by both appellants into eight (8) grounds. On the issue of the circumstances of identification being unconducive,  she submitted that there was recognition and positive identification with  no possibility of mistaken identity. She also pointed out that the evidence of Pw1 was corroborated of the evidence of Pw3 with regard to the area being well lit by the light from electricity bulbs at  Utange Baptist School which  enable one to  see up to a distance of 5 metres. And on recognition, Pw1 stated that he knew the two appellants Tom and one called Mario before this as  boda boda operators and his regular customers respectively. It was therefore not the first time for him to see the  two.  She submitted that the evidence pointed at the appellants’ guilt and placed them at the scene of incident.

On the issue of the prosecution having failed to produce a doctor’s report, M/s Matua submitted that Pw1 only said that he was hit with a  metal rod but did not say he visited any hospital for treatment. She said that the production of a doctor’s report in such a case is not a required ingredient to be proved except to prove the stealing occurred and there  was loss of a motor cycle which was never recovered, and this the prosecution did by producing a receipt for its purchase and log book as exhibits P 1 and 2 respectively. She also submitted that there was proof of them having been armed with metal rod which they used to hit the complainant and that they were two people.

M/s Mutua further submitted that the appellants’ defence were well considered in view of their evidence and that, by the prosecution.

The duty of this court as a  first appellate  court is to re-evaluate the evidence that was adduced before the lower   court and draw  independent conclusion as was held  in the case of OKENO VRS  REPUBLIC 1972) E .A 32. And as the court does this, it should not be lost to it that it did not have the advantages of seeing and hearing the witnesses as enjoyed by the trial court (See SOKI VRS REPUBLIC (2004) e KLR.

THE SUMMARY OF EVIDENCE.

The prosecution adduced evidence of four (4) witnesses.

Pw1, DENNIS MUSYOKA, told the court that he operates a motor cycle (boda boda) taxi and that on 25. 7.2008, he was waiting for passengers at the Shanzu stage. He said that the motor cycle he was riding was registration No KBB 387. He  got a passenger who he took to  Serena where he got another  passenger he identified  as Tom who was going to the place of  blanket called Minaningi Pw 1 said that when they got there, the passenger asked him to  proceed to  Utange Baptist so he  could meet someone. And when they got there, as Pw1 waited to be paid his fare, the passenger alighted and two men emerged from the bushes. He said that he knew Town and one of the men who he identified as Moijo. Pw1 said the men beat him with a metal which he blocked with his hand and it fell. He then said Tom took the motor cycle and drove it away while carrying the two men.

Pw1 then went and reported the incident to the owner of the motor cycle by the name Onyango who called the police and four police officers came. That they looked for the people who had robbed him of the motor cycle.  They managed to get Moijo as he normally operates at Serena, and arrested him.

Pw1 told court that these people took his driver’s identity card, driving, license and Ksh 1000/= cash. He identified the 1st and 2nd Appellants to court and said that he did not know   the 3rd and 4th accused persons. He  also said that the place where the motor cycle was taken had lighting from electric bulbs at the  Utange Baptist school that one could see  someone  at a distance of about 5 metres away. He told court that Tom,  the 2nd appellant was a boda boda  operator while Moijo was a regular  customer.

In cross examination by the 1st appellant, Pw1 testified that he had not known him  for long and  though he  could not describe his physique, he explained to the police who he was, how he appears and that he  is known as Moijo. He also said that the 1st Appellant  was arrested within one (1)  hour from the time of the incident. He  also said that he had carried  the 1st appellant on credit before and denied having ever told him that he  would regret for not paying him.

When cross examined by the 2nd appellant, Pw1 also confirmed that he had known him as a “boda boda” operator for about one year  and as a bad person as he had heard of his  activities. He then told court that he carried him because he knew him and his parents and could not have left him. He said he had been with the motor cycle for two weeks and gave its registration number as KBB 387 N. He said that he was not there when the 1st appellant was arrested but the  owner of the motor cycle was, though he was also not there when he was robbed. He also said that the owner of the motor cycle also knew the 1st appellant very well. He testified that the 1st appellant was arrested on 16. 9.2008, after a month. He further said  that  he could not say who hit him with the metal as they were three of them. He said that the 2nd Appellant was involved in  beating him and he was the first to  hit him.

PW2, LUCAS ONYANGO JUAME told court that he was a business man  and operates a motor cycle “bodaboda “ taxi. It was his evidence that on 25. 7.2008 at about 11. 20 pm, he was asleep in his house when he was woken up by a knock at the window. He then heard the voice of his rider Denis Musyoki  (Pw1). He looked and confirmed  he was the one but was strip naked. He then opened to talk to him but Pw1 was in tears, was injured and incoherent that he only managed   to tell him that the motorcycle was gone. Pw2 said that Pw1 was injured on the left wrist and he told him that he had carried someone he knew from Serena who wanted to go to a place called Ghorotahi but had changed and said that he needed to see someone at Baptist. That when they got to Baptist, the man alighted and as his rider waited for payment, other people came out of the dark and the passenger who had something like  a metal, hit him. The man then took the motor cycle, sat on it as the others attacked Pw1 and beat him up. They took his money and stripped him naked. The passenger, who Pw2 said Pw1 identified to him as Tom, carried the rest and rode away. Pw2 said that Tom was well known to him as he was his neigbour.  He identified the motor cycle make Tiagma Kinhan registration No KBB 387N as his. He identified the receipt for purchase  issued to him by High Time Trading  Limited  on  10. 3.2008 for Ksh 94,165/= ( Exhibit P1) a copy of logbook since the original was held at Blue Shield insurance  after the loss of the motorcycle (Exhibit  P2). He said that Pw1 recognized only Tom, the said appellant and Morio  the 1st Appellant. They looked for police on patrol and reported the matter. The police interrogated Pw1 and he had them to the scene of incident.  When he explained that it was the Appellants. Pw2 said that Pw1 told him that it was the 1st Appellant who had stopped him at Serena so that the 2nd Appellant could get onto his motorcycle. That Pw1 also said he saw them at the scene where the motor cycle was stolen and explained who the assailants were. Pw2 said that they went to Serena where they did not find the 1st Appellant and so they left  a number  with  someone. And so, Pw2 was called and told that the 1st Appellant had been seen. He went there with the police and found the 1st Appellant near Safari Inn from where they arrested and escorted him to Bamburi police station. And on 16. 9.2008, he was called and told that the 2nd appellant had been seen at  Kongowea. He called the police and they went and found him. He was also arrested and escorted to Bamburi  police station where  he  mentioned  3rd  and 4th  accused persons as  accomplices. The 3rd accused person was also arrested at Kongowea while 4th accused was arrested at Kenol as directed by the 2nd Appellant. He said that the motor cycle was never recovered.

Upon being cross examined by 1st Appellant, Pw2 said that he was present when they were arrested but was not present when the motor cycle was robbed. He also said that Pw1 had worked for him for 1 1/2 years and he did not know him before he employed him. He also said that Pw1 passed by his place first before going to the police to tell him what had happened.

When cross examined by 2nd Appellant, Pw2 told court that Pw1 had worked for him for 1 ½ years, and he trusted him and this was not the first motorcycle he was riding from him. He confirmed that the motorcycle was his but it was not robbed from him. He also told him that after the 2nd Appellant was arrested, he lead to the arrest of the other two.

Pw3, No. 664998 P.C Wanjala Mayende of Bamburi police station who testified as the investigating officer told court that on 26. 7.2008, he got a report in the occurrence book that there was a  suspect who had been brought in by his  colleagues for the offence of robbery with  violence of a motor cycle . He went to the scene and returned to record statements from witnesses. He told court what Pw1, Denis Musyoka had narrate to him of the incident.  He also narrated what Pw2, the owner of the motor cycle told him. He also testified as to how he arrested the appellants respectively and how   they were identified by Pw1. He also said that the 2nd Appellant directed them to his accomplices and the police arrested the 3rd and 4th accused persons. According to Pw3, the 2nd Appellant was identified as the customer who hired Pw 1 to carry him and he struggled him. He then identified the 1st Appellant as one of the people Pw1 said emerged from the bush and recognized him as Morio.

When cross examined by the 2nd Appellant, Pw3 said that he was arrested by police on patrol while with the victim and owner of the motor cycle. He said that Pw1 told him that he was beaten by 3 people who he could recognize and that he saw them using the lights of bulbs for security at the church. He also said that the 1st Appellant was not arrested with anything belonging to the victim. He denied that the complainant told him that the 1st Appellant owed him money. He also said that he did not need descriptions of the persons as the victim knew him and where he worked and he believed him.

And on being cross examined  by the 2nd Appellant, Pw3 told court that the victim would be in a better  position to recognize the  robbers  than himself  as he was not at the scene of incident at the time of  happened.

Pw4, No 70987 P.C SAMMY GIHURA, of Likoni police station but he was previously based at Bamburi police station. He testified that  on 26. 7.2008, he  was at work  with  PC Ouma at about 9. 00 pm when the O.C.S, C.I.P Naundo instructed him to go  and look or a motor cycle belonging  to a person who had been abandoned  at Majaoni as the robbers went  away with the motor cycle. That at  1. 00 am, the OCS again  called  and  asked him to go to  Serena  area and get someone who had been caught by member of public and was alleged to have been among the robbers. They obliged and escorted the suspect to Bamburi  police  station where  the report  had been booked . He was later charged with the offence. Pw4 went on to state that a month later, the 2nd   Appellant was arrested at Kongowea after the complainant   identified him as the one who drove  away the  motor cycle. That he lead pw4 and Pw3 to the other accomplices, who they arrested.

Upon being cross examined by the 1st Appellant, Pw1 said that he was not  aware that the   complainant’s  employee had called the police before he was called and they came to Serana. He denied that the 1st Appellant had been beaten he said that the complaint saw the 1st Appellant and mobilized other boda boda operators to arrest him.

And when cross examined by the 2nd Appellant, he confirmed that he was arrested by the owner of the motor cycle, which is allowed. He said that the 2nd Appellant volunteered to show him their accomplices.

Upon the close of the prosecution case the trial magistrate found that the 1st  and 2nd Appellants had a case to answer and placed them on  their defence as per the  provision of section 211 of the Criminal Procedure Code. The provisions of this section was explained to the Appellants and each one of them opted to give unsworn testimony without, calling   any witnesses.

DW1, YUSUF GITAHI NJERI is the 1st Appellant and he testified that on 25. 7.2008, he had a fractured leg and so he left  late for his business of selling  onions at Serena. He said that because of that, and the cold season he had to be collected on a motor bike on credit. He said that he would be collected at 9. 00 pm to be taken home and on that particular day, the rider came for him at 9. 00pm but he was not ready to go since he was expecting customers.Dw1 said that the rider forced him to close saying it was his last trip. And as he was  closing, someone came to see necklaces and so he stopped closing. The customer required transport and so Dw1 asked the rider if he could take him first and come for him later. The rider agreed and carried the customer to Shanzu. And after  waiting for  the rider for 1 ½  hours , a K K vehicle came and he heard someone  saying “where is he “ and another said “he is the one”  He wanted to know what it is  going on and the  police  officer in uniform suddenly opened the door and asked  where the  people who had  boarded  the motor cycle were. That when he asked “who” the officer called someone from the vehicle and he saw it was the rider he was waiting for. That the rider confirmed that he was waiting for him when a customer came and he carried him promising to come later. He was ordered to enter the vehicle so he could record a statement. He was taken to Bamburi police station where the other officers asked him to go into the occurrence book area and sit down. He was then told that if he would not say who had   boarded the motor cycle that he would be charged. He tried to ask the complainant to explain what had happened but the police told him to leave him alone because he was the one who was  conspiring with robbers.Dw1 said  that he was arraigned in court and  he believed that the police just wanted to  satisfy the owner of the motor cycle. He even produced the charge sheet where he had been charged alone as D exhibit 1.

In cross examination, Dw1 said that he knew the complainant as he used to carry him but they had no relationship beyond that. He said that it is possible to have been mistaken. He reiterated that he was charged alone and did not know who else was involved.

Dw2, THOMAS MBATHA MUSYOKA, told court that he lives at kwa Karama at Kongewea where he has a vegetable stall. He testified that on the day he was arrested, he woke up, as usual, went to buy his stock and  hired someone to carry them for him. He went to the stall and paid the man. He then left for the lights area where his friend roasts maize because he had given him  money to make  necklace for him. And while there he saw a person who used to carry stock for him on credit. He had not seen the man for 3 days. The man confronted him and told him that he had contracted some else without paying him.  He then asked the man to go to him so he would pay him but the man refused saying that he was back in Mombasa and Dw2 would know it. He gave the man’s name as Muhuku. He waited for roast maize and was surprised when he was caught by two people he did not know. That one of them told him he was a police officer and told him that he had robbed someone of a motorcycle. He was then taken to a place where motor cycles are sold in a “Tuktuk” and then to the  bodaboda stage. He was   put in  “tuk tuk” with two other boda  boda operators and taken to Bamburi police station where he was locked up . Dw1 said that despite the torture he was put through at the police station, he maintained that he knew nothing about the motor cycle. He went on to state that an officer by the name Wahome  hit him on the knees and  elbows with  and  iron rod and he decided to agree knowing that he could  be  arraigned  in court for the truth to come out. He said that he only saw the driver in court.

In his judgment, the trial magistrate had this to say at page 47; lines 5 to 13

“I have considered the evidence. It is clear to me that Pw1 and  1st accused were well known to each other because Pw1 used  to ferry 1st accused even on credit. I am also satisfied that  Pw1 knew 2nd accused.  The latter denied not withstanding  because it’s his description of him that led to his arrest. He  saw who had ferried. At the core of the prosecution evidence  the narration of events is consistent and the differences e.g.   failure of the complainant to mention who exactly  applied  the  iron bar on him while  other  witnesses say it is  the 2nd accused are not so wide as to render the national   inconsistencies that would cast reasonable doubt on the  prosecution’s  account of  events………………….”

I am satisfied that Pw1 recognized the second accused as part of the   group that robbed him…………………………In the   trial analysis , I have  no doubt that  the 2nd accused were at the scene  of the robbery and  were recognized by the victim and there is no particular reason why he  should  implicate them.

The upshot is that the accused are both found guilty of the offence of  robbery with violence and are accordingly convicted.”

The two appellants were sentenced to death.

DETERMINATION.

I have considered the grounds upon which the Appellants have appealed against their conviction sentence, in line with the evidence that was adduced before the trial court and the arguments in the submissions by both sides together with the cited authorities and the law. I find the issues for determination being;

(a) Whether the Appellants were properly identified.

(b) Whether the prosecution’s evidence against the Appellants was  sufficient and satisfactory to warrant their conviction and subsequent   sentence

( c) Whether  the Appellant’s  defence was not  considered.

On the issue of whether identification was properly found, I find that the Appellants were identified by Pw1. In his evidence to court, Pw1 stated;

“………..when the passenger alighted, I got another  passenger called Tom he was going to the place of Blanket   called  Minazi Mingi. When we got there he asked me to  proceed to Utange Baptist. He was to see someone there.  When we got there, as I waited for my fee, when he alighted,  two (2) people came from the bushes, they beat me and took   all my belongings. I knew 2 of them. Tom and one called  Morio, that is how we all call him. I did not know the 3rd  person. They beat me with a metal I did not see what type of  metal. I first blocked it with my hand and it feel. Tom  took  the motorcycle and rode it carrying the other 2. Tom was my  passenger …………………..’”

The place where the bike was taken had lighting. One could see  someone at a distance of 5 metres away. The lighting was from  electric bulbs at Utange  Baptist school. I knew tom and Morio  before. Tom  used to be a boda boda operator and  Moiro  was a regular customer.

In cross examination by 1st Appellant, Pw1 stated;

“ I knew you  but not for very long. I knew you  work around   Serena  …….We know you are called ‘Morio” from the time  of incident till the time you were arrested  as  approximately   one (1) hour. I was with the police  even police knew you  ……Yes I have carried you on credit before. I did  not say  that if you did not pay then you would regret.

And when cross examined by 2nd Appellant, Pw1 stated;

“I knew you, you are a motor cycle operator. I knew you for  about a year. I knew you as a bad person. You were going  home. I also knew you parents. I   could not leave you……”

Clearly this is evidence of identification by recognition and by a sole identifying witness. In the case of REGINA VRS TURN BULL (1976) 3 ALL E.R 549,the court observed:

“ Recognition may be  more reliable than identification  of a  stranger,  but even when witnesses are purposely to   recognize  someone  when she or he knew  the  jury should  be reminded that mistakes of recognition of  close  relatives  and friends are  sometimes made …………….”

The 1st Appellant, in his defence did not deny being known to the complainant in this case, having used him to collect him on his motor cycle to and from work at Serena area. He even confirmed that on the day of the alleged incident he let the complainant transport a customer of his as he waited and was arrested while waiting for him to come back for him.

The 2nd appellant denied knowing of the motor cycle rider (Pw1).

In analyzing the evidence of Pw1, I find that the evidence with regard to him being well-known to the Appellant was not challenged. The incident took place at night but he testified that he had ridden with the 2nd Appellant who he identified as Tom from  Serena area to Utange. He also testified that he knew the 1st Appellant for he had been his customer for some time. There was also evidence from him that there was light from electricity bulbs at Utange  Baptist school.  Which would enable one see up to a distance of about 5 metres away. The circumstances which were brought out by Pw1 in his evidence were favorable for recognition and positive identification so that there was no mistaken identity.  As set out in the cases of ANJONONI VRS REPUBLIC (1980) KLR 54, REGINA TURNBULL (1976) 3 ALL E R 549, MAITANYI VRS REPUBLIC (1986) 2 ELR 75, KARANJA & ANOTHER VRS REPBLIC (2004) 2 KLR 140 and WANJOHI & OTHERS  VRS REPUBLIC ( 1989) KLR 415.

On the second issue of whether the prosecution   adduced sufficient  evidence to warrant the conviction and subsequent  sentence  against the Appellants, it is clear from the evidence of all the prosecution witnesses that their  evidence was  consistent  and well corroborated with regard to the  incident of the  night. The accused persons on the other hand did not dislodge the prosecution’s evidence with their evidence. The appeal by the Appellants is un meritable and their conviction is hereby upheld.

As for the death sentence that were meted against them, I wish to reconsider the same in view of the recent holding by the Supreme Court in the MURUATETU case.

I therefore refer the matter to probation officer for a social inquiry on each accused person to enable me reconsider a review of the same.

Order accordingly

Judgment dated, signed and delivered this 6th date of February 2019.

LADY JUSTICE D. O. CHEPKWONY

Appellant I pray that I be allowed to file them.

Court – The social inquiry reports on the appellants have been filed.

Mention on 10. 4.2019 for direction and consideration.

D O Chepkwony ( Judge)

4. 4.2019

10. 4.2019

Before Hon D O Chepkowny ( J)

C/clerk- Beja

M/s Ocholla counsel for the state

Appellants – Both present

Court; The appellant appealed against their conviction and sentence vide CR Case No 2887 of 2008 were they had been charged with the offence of robbery with violence.

Their appeal was dismissed after the court confirmed their conviction by the trial magistrate with regard to the sentence, the case was referred to social inquiry for each appellant in light of the Supreme Court’s decision in the Muruatetu case, on the constitutionality of the death sentence.

The social inquiry reports by Mr Migwi, the probation officer have been filed in court. I have read through them and find the same favourabe in respect of each appellant.

I have also considered the degree of injuries the complainant sustained and what he lost as a result of the robbery, coupled with the period they have served.

From the social inquiry it appears to be confirmed that the Appellants have reformed and are ready to be reintegrated back into society and live normal lives.

I therefor revise the sentence that was imposed upon them I proceed to quash the death sentence and substitute the same with a sentence of ten (10) years imprisonment to start from the date they were sentenced to death.

Orders accordingly.

Order delivered, dated and signed this 11th day of April, 2019.

LADY JUSTICE D.O. CHEPKWONY