REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 1155 OF 1995
(from original conviction and sentence of the Senior
Resident’s Magistrate’ s Court at Nairobi in Criminal Case
No. 429 of 1995)
GERALD MACHARIA GITHUKU ….…………. ……APPELLANT
VERSUS
REPUBLIC ……………………………..…………….. RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1154 OF 1995
ALFRED MUCHIRI MACHARIA …………………… APPELLANT
VERSUS
REPUBLIC ………………………………………..….. RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1153 OF 1995
JOHN WANJOHI NDEGWA ……………..………….. APPELLANT
VERSUS
REPUBLUC ………………………….……………….. RESPONDENT
J U D G M E N T
On 7th August 1995 in Chief Magistrate’s Court at
Nairobi the Appellants – JOHN WANJOHI NDEGWA, ALFRED
MUCHIRI MACHARIA AND GERALD MACHARIA GITHUKU
were convicted on the offence of robbery with violence contrary
to Section 296 2) of the Penal Code and were all sentenced to
death in the manner prescribed by law.
Being dissatisfied with the conviction and sentence they
simultaneously lodged Appeals to this Court to wit:-
- CR. APP. NO. 1153 OF 1995 BY
JOHN WANJOHI NDEGWA
- CR. APP. NO. 1154 OF 1995 BY
ALFRED MUCHIRI MACHARIA
- CR. APP. NO. 1 155 OF 1995 BY
GEALD MACHARIA GITHUKU
As the Appeals arose from the same Criminal Case below
and the original record to be used was one, the Appeals were
consolidated for purposes and ease of hearing. However before
the Appeal could come up for hearing JOHN WANJOHI
NDEGWA and ALFRED MUCHIRI MACHARIA passed on
whilst in prison custody and consequently their Appeals
abated. In the result we are only left to deal with GERALD
MACHARIA GITHUKU in this Appeal.
In his petition of Appeal, the Appellant listed 6 grounds
namely:-
1. That the Appellant was notidentified by theComplainant as havingparticipated in the crime.2. That the Learned Magistrateerred in Law in convictingthe Appellant on conflictingand contradictory evidenceof the Police Officers.3. That the Learned Magistrateerred in law in failing toappreciate that theAppellant was not chargedwith being in possession ofthe pistol and consequentlycannot be connected withthe offence.4. That the Learned Magistratemisdirected herself in Lawin failing to consider thatthe evidence of finger printsexpert was not tendered –that would have linked the
Appellant with the toypistol.5. That in totality the evidenceadduced fell short of provingthe charge of robbery withviolence.6. That the Learned trialMagistrate erred in Law andfact in not adequatelyconsidering the Appellantsdefence.
At the commencement of the hearing of the Appeal the
Appellant was with the leave of Court allowed to tender his
written submissions in support of the Appeal. We have heard
the benefit of reading the same and must say they were very
illuminating. We shall revert to them in detail in the course of
this Judgement. In his oral submissions, the Appellant
invited us particularly to consider the contradictions in the
evidence of PW3 and PW4. He submitted that at page 19 line
23 – 25 of the Learned Magistrate’s Judgment, PW3 stated
that he took the gun together with the exhibits from the
Complaint whereas PW4 in his testimony started that the gun
was found in his possession. It was his contention therefore
that such evidence should not be believed. He complained
that he was framed and urged this Court to consider his
written and oral submissions in totality and allow his Appeal.
The State was represented by Miss M.L. Okumu Learned
State Counsel. In her submissions, she supported both the
conviction and sentence. She referred us in detail to the
evidence of PW1, PW2 and PW3 and PW5 which basically was
that PW1 was carjacked and robbed at about 7.30 P. M. PW2
and PW5 were Police Officers who saw the Complainant’s
Motor Vehicle being driven in a suspicious manner and
decided to chase it until it was involved in an accident. In the
meantime PW3 and PW4 having been alerted of the robbery by
the 999 Police system joined in the chase of the motor vehicle.
The Complainant’s vehicle was involved in an accident in the
course of the chase and the Appellant together with the
deceased Appellants came out of the vehicle and ran off in
different directions. The Appellant was chased and arrested
30 metres from the locus in quo. PW4 further testified that
there was sufficient street lights at the scene. That there were
no other persons at the scene and that a toy pistol was
recovered from the Appellant. During the chase of the
Appellant PW3 and PW4 never lost sight of him. It was her
further submissions that the Appellant was properly identified;
and that the ingredients of the offence were met. The
Appellant was with others when the offence was committed
and was armed with a toy pistol the time of the robbery. There
was common intent by the three to commit the offence. The
Learned State Counsel concluded by submitting that the
prosecution evidence was credible and watertight. The Appeal
should in the result be dismissed.
We propose to deal with the grounds of Appeal advanced
by the Appellant seriatim and draw our conclusions upon
evaluation of the evidence on record. We shall combine
grounds 1 and 2 of the Appeal as they all relate to the issue of
identification. It was the Appellant’s submissions that the
circumstances under which he was arrested did not rule out
the possibility of mistaken identity. Was the chase and
eventual arrest of the Appellant free from possibility of any
error or mistake? The Complainant in his testimony stated
that he was unable to identify any of the suspects from the
time he was carjacked and robbed to the point where his
motor vehicle was involved in an accident and the suspects
nabbed. Consequently, the only evidence of identification was
that given by the Police Officers who were involved in the
chase and subsequent arrest of the Appellant. He further
submitted that the chase occurred at night and visibility was
poor. Although the Police Officers admitted that the area was
illuminated by electric light nonetheless they were unable to
tell the nature of the said light, its source, location vis a vis
the fleeing Appellant. That all circumstances considered the
possibility that the Police Officers apprehended innocent
persons engrossed in their daily chores could not be ruled out.
In support of his contention that the possibility of mistaken
identity could not be ruled out the Appellant referred us to
what he claims to be contradictory testimony of PW3 and PW4
regarding the number of persons they saw running away from
the stalled motor vehicle – were they 2 or 3, and also whereas
PW3 claimed that they passed the culprits in their motor
vehicle for a while before they stopped and chased them on
foot for a while before their arrest, PW4 testified to the
contrary. He stated that they merely chased them on foot.
The Appellant therefore challenges the credibility of the
witnesses. He concluded his submissions by stating that he
was a victim of mistaken identity as his chase and eventual
arrest did not rule out a possibility of the real culprits having
escaped by mingling with other members of the public to
conceal their identity; more so when the valuables allegedly
stolen from the Complainant like money and the watch were
not recovered from any of the suspects.
It is common ground that the Complainant was car
jacked and robbed of valuables enumerated in the charge
sheet. It is also common ground that soon after the incident
the subject motor vehicle was spotted by PW2 and PW5 who
were Police Officers on patrol duties within industrial area
being driven suspiciously and they started to trail it. It is also
not denied that the Complainant’s Motor Vehicle was
subsequently involved in an accident when in an attempt to
shake off the patrol car of PW2 and PW5, the carjackers
overshot the round about linking Dakar road and Dar-essalaam
road. It is also not in dispute that once the subject
motor vehicle stalled after the accident some occupants came
out and ran in different directions leaving the complainant in
the motor vehicle injured. It is also common ground that all
the Appellant were arrested within the vicinity of the incident.
It is also common ground that the scene where the accident
occurred and the Appellants arrested was well lit. The street
was deserted save for the Appellants and the activities of PW2,
PW3, PW4 and PW5 leading to the arrest of the Appellant. On
arrest one of the Appellants was found in possession of the
jacket belonging to the Complainant together with valuables
whereas the other was found with a toy pistol. What is in
dispute is whether the three Appellants who were arrested
within the vicinity were the same people who car jacked the
Complainant. The Complainant’s evidence is of little help in
this regard for he admitted that he was unable to identify any
of the Appellants due to the manner in which he was handled
soon after the car jacking.
We are therefore left with the testimony of PW2, PW3 and
PW4 in so far as the identification of the Appellant is
concerned. PW2 and PW5 gave vivid account of how they
spotted the vehicle that had been commandeered by the
robbers, the ensuing chase which was very close up to the
time the subject motor vehicle crashed. They had been joined
in the chase by PW3 and PW4. It was the evidence of these
witnesses that at no single time did they loose sight of the
motor vehicle. And that when it crashed into the round about
three people came out and ran in different directions. They
were chased and arrested within the vicinity. As the
streetlights were on, the said witnesses confirmed that they
never lost sight of the people who had jumped out from the
motor vehicle and ran in different directions until they were
arrested. The Learned Magistrate formed the opinion that
these witnesses told the truth and did not waver at all under
intense cross-examination. Indeed their testimonies taken
together not only complemented each other but was also
consistent. It is important to note that in his defence the
Appellant did not deny that he was arrested in the vicinity of
the accident. All he says was that he was arrested at 10.00 P.
M. whilst on his way home from duty. He had nothing to do
with the crime and that he was therefore framed. The Learned
Magistrate having observed the demeanor these witnesses
chose not to believe, and rightly so in our view, the Appellant’s
defence. The Appellant in his written submissions complained
that since their arrest occurred at night and visibility was poor
and even though the area was illuminated by street lights,
nonetheless the Learned Magistrate did not appreciate how
intense the street lights were, their location and position
relative to the fleeing fugitives. However, we do not think that
this Complainant has any merit. The testimony of the Police
Officers was cogent. When chasing the Appellant which was
for a very short distance they never lost sight of him. The
electric light illuminated on the Appellant through out. We are
satisfied on the evidence that the conditions prevailing were
favourable to the positive identification of the Appellant
bearing in mind that other than the Appellant and the other
co-accused there were no other people in vicinity.
We now turn to consider grounds 3 and 4 of the
Appellants jointly. In these grounds the Appellant complains
that the Learned Magistrate did not consider that the
Appellant had not been charged with being in possession of a
toy pistol. Consequently there was no nexus between him and
the offence of robbery with violence; and that the evidence of a
finger print expert that could have linked him with the toy
pistol was not tendered.
The evidence on record is that the Appellant was upon
arrest and search found in possession of the toy pistol. He
had been seen dashing from the stalled motor vehicle dangling
what appeared to be a pistol. The Appellant need not have
been charged with the alternative count involving the toy pistol
to connect him with the charge he was facing nor was finger
print expert evidence necessary in the circumstances. Indeed
nowhere in the entire evidence recorded does he deny
possession of the toy pistol. If it is established that what
appeared to be a pistol is indeed a toy pistol, is the evidence of
a finger print expert really necessary? We think that in the
circumstances of this case it was not. The nexus connecting
the Appellant to the offence is provided by the fact that he
came out of a stalled vehicle, attempted to run, was chased
and arrested. Upon arrest he was found in possession of the
toy pistol tacked in his waist. When taken with the testimony
of PW1 as to how he was car jacked – someone thrusting what
appeared to be a gun to his temple, the nexus is complete.
We now turn to consider ground 5 of the Appeal. The
complain here is that the totality of the evidence adduced fell
short of required standard of proof for the offence of robbery
with violence. We disagree. The prosecution led evidence
which showed that the Complainant was violently robbed of
his vehicle and valuables. A gun was used. That gun turned
out to be a toy gun. Three people were involved in the
transaction. A toy gun was subsequently found on the
Appellant. When arrested one of the co-accused had in his
possession valuables that had just been stolen from the
Complainant. All these circumstances taken into
consideration we are persuaded as the Learned State Counsel
submitted that the ingredients for the offence of robbery with
violence contrary to Section 296 (2) were met and we see no
merit in this ground.
In conclusion we deal with the ground of Appeal in which
the Appellant complains that the Learned Magistrate erred in
law and fact in not adequately considering the Appellant’s
defence. The Appellant gave unsworn statement in which he
detailed his movements on the material day. In a nutshell he
denied his involvement in the crime and offered an alibi. He
complains that the Learned Magistrate failed to address
herself adequately to the defence before rejecting it. The
Appellant referred us to Section 169 (1) of the Criminal
Procedure Code. Unfortunately the Section is of little help to
the Appellant. The Section deals with the contents of the
Judgment. Our perusal of the Judgment leaves us in no
doubt at all that the Learned Magistrate fully complied with
the requirements of the Section. We are also satisfied that
the Learned Magistrate in her well considered Judgment
reverted to the Defence put across by the Appellant and
rejected it. She was not persuaded by the Appellants story
that he was walking home when he was accosted by Police
officers and arrested. The Learned trial Magistrate discounted
the Appellant story that although where he was allegedly
working, transport was provided he opted not to use the same
but walk home on foot at 10.000 p. m. This ground of Appeal
therefore fails.
In the result we find no fault by the Learned Magistrate
in the manner in which she conducted the proceedings. We
are satisfied that the evidence on record linking the Appellant
to the perpetration of the crime was watertight and
overwhelming.
Consequently we dismiss the Appeal.
Dated and delivered at Nairobi this …………… day of
………… 2004.
M. S. A. MAKHANDIA
Ag. JUDGE
L. K. KIMARU
Ag. JUDGE