Osbon and Dickson now come before us on this second and last appeal which may only lie on matters of law (Section 361 Criminal Procedure Code). Osbon was represented before us by learned counsel Mr. L.G. Menezes, while Dickson was represented by learned counsel Mr. J. Musomba. The memorandum of appeal put forward by Mr. Menezes was fairly extensive and contained the following 12 grounds:
“1. The first appellate court manifested its perfunctory approach to the appeal by not even making itself aware that the 4th accused person SAMWEL KOSWAGO had passed away in prison and that this was duly noted in the court record.
The facts which came from eight prosecution witnesses and the two appellants are fairly short and straightforward. Abdi Farah Mohamed (PW1) (Abdi) was in the business of buying fish from various fishermen in Lake Victoria for sale to his principals in Nairobi, M/S. Wet Fish Processing Factory. On 13th April, 2002, he was in Mbita area in a medium sized motorboat, 5 – 6 metres long, whose coxswain was Jared Omondi Opiyo (PW3) (Omondi), and loader William Okello Agunda (PW4) (Okello). They were joined by APc. John Odhiambo Okoth (PW2) (APc. Okoth) who was based at Mbita District Headquarters but had sought a lift in the boat. There was also a lady passenger in the boat. At about 8.30 a.m., the group landed in Ukula Beach in Gwassi where Abdi used to buy fish and he distributed some money to his agents. They then prepared to set off to the next stop, Uterere Beach. Just then, some two persons approached Abdi and asked him for a lift. Abdi agreed and they boarded the boat. One of them was carrying a travelling bag. After about 10 minutes and 200 metres into the lake, the bag-carrying man produced a gun, an AK 47 rifle, and commanded everyone to lie down. They all did except Omondi the coxswain. The man then ordered Abdi to remove all the money he had as well as his jacket and Abdi complied. He gave out Kshs.110,000 from his jacket as the other man frisked him and removed Shs.10,000 from his trousers. His two jackets were also taken. The second unarmed man also took Shs.10,000 from APc. Okoth and Shs.7,100 from the woman passenger. The assailants then ordered the coxswain to proceed to Ragwe where they disembarked near Ragwe Primary School and disappeared. One of the victims raised an alarm and some passersby responded but when they saw the gun held by the assailant they fled. The incident lasted about 15 minutes. No shots were fired from the gun.
The victims proceeded to Sindo District Officer’s office where they reported the matter and an attempt was made to pursue the assailants but in vain. The report was also made at Mbita Police Station.
On being interrogated by IP Shitanda, Dickson admitted his involvement and implicated his brother Osbon, who was found in his house at Rongo. Osbon gave information which led to the recovery of the gun behind the house of their cousin, 3rd accused, in North Sakwa Location. Osbon and the 3rd accused were arrested. The fourth accused (deceased) who was arrested on information received from Dickson and Osbon was said to have been a medicine man who gave them charms as they carried out their missions and shared the loot.
The recovered rifle was examined by Johnston Musyoki Mungella, (PW6) a firearms examiner at the CID Laboratory Headquarters, Nairobi, who confirmed that it was an AK 47 rifle 7.2 caliber designed to chamber 7.62 x 39 mm ammunition. It was intact save for the detachable magazine which was replaced by an imitation wooden one, but fitted in the magazine well of the rifle. He successfully test fired the gun by using three rounds of appropriate ammunition and confirmed that it fitted the definition of a firearm.
The two appellants were subsequently arraigned in court for the offences stated earlier. In his defence, Osbon gave sworn testimony that Police Officers from Kamagambo Police Station went to his shop at Rongo at 3 a.m. on 30th May, 2002 and woke him up. They searched his shop and found nothing. They arrested him and took him to Mbita Police Station where he was interrogated over a period of 11 days before being taken to court and charged with a robbery case he knew nothing about. He stated that he was in partnership with his brother Dickson in the business of selling utensils but Dickson was hawking his wares from place to place. Dickson confirmed in his sworn testimony that he was dealing in utensils and that he was in Mbita Market on 29th May, 2002 selling his merchandise. At 7 p.m. he packed his wares and took them to the bus stop but found no transport. While he stood there, two Administration Police officers came along and demanded to know what he was doing there. He told them he was waiting for a matatu but they asked for receipts of his merchandise which he said he did not have. They solicited a bribe which he could not give and he was arrested. They took him to Mbita Police Station where he was interrogated and the following day they brought his brother to the same station. Eventually the two were charged jointly with an offence he knew nothing about. He denied giving information to the police leading to the arrest of his brother or the recovery of the AK 47 rifle.
The trial magistrate evaluated the evidence before him and had no difficulty in finding that the two appellants were involved in the robbery. He expressed himself thus:
He also believed the evidence of APc. Okoth that he bumped into Dickson at Sindo township on 28th May, 2002 and identified him before arresting him after a chase. He evaluated the evidence on identification parades which he found were held in accordance with the Force Standing Orders and confirmed the visual identification of the appellants at the scene by the three witnesses. He concluded:
“Taking into consideration the foregoing, I am satisfied that accused 1 and 2 did rob PW1 and 2 of money as alleged in the particulars of count I and II. At the time of the robbery they were armed with an AK 47 rifle. It is the evidence of PW1 – 4 that no shots were fired during the robbery nor was any of them assaulted by the two thugs. Nevertheless the rifle they were armed with was a dangerous weapon and accused 1 threatened to make use of it by training it at their victims as they robbed them. The victims were certainly apprehensive that accused 1 might use the rifle at the sign of the slightest resistance on their part and they cowered in fear.
The superior court, he observed, was casual in its evaluation of the record by stating that the trial court had said nothing about the 4th accused when the record was clear that the trial magistrate recorded the death of the 4th accused and terminated his case under section 87 (a) of the Criminal Procedure Code. That, in his view, was proof that the superior court did not re-evaluate the evidence. Further lack of evaluation was proved by the omission by the superior court to find and hold that the purported confession by Dickson to IP Shitanda that he had participated in the robbery and implicated Osbon was not made under caution and was therefore inadmissible. It was the same officer, Mr. Menezes observed, who had tendered confusing evidence of recovery of the rifle, thus putting his credibility in issue. He further attacked the purported identification of Osbon by Abdi who never attended any identification parade and dubbed it as dock identification. The identification parades themselves were also of no probative value, he submitted, since the appellants were not allowed to have access to advocates, the witnesses simply walked to the suspects without looking at the other members of the parade thus raising suspicion, and also because “police officers” were part of the members of the parade. As regards the defence of the appellant, Mr. Menezes contended that it was not considered although it was made on oath and there was no cross-examination by the prosecutor on the rifle which formed part of the charges. Indeed, he submitted, the superior court made no reference to the defence which was further evidence of non-evaluation of the evidence. Finally, Mr. Menezes attacked the long period of four months when the appellant awaited his trial as the prosecution kept on seeking adjournments on the ground that the ballistics expert’s report had not been submitted to them. On all those occasions the appellant was not asked by the court whether he had anything to say on the application for adjournment. There was therefore a violation of the right to fair and quick trial thus entitling the appellant to acquittal on that ground alone.
The submissions of Mr. Musomba may also be summarized. The thrust of his argument, if we understood it, was that the absence of violence in the alleged robbery and the fact that the alleged offensive weapon, the AK 47, had a wooden magazine and therefore not a dangerous weapon, would reduce the offence to one of simple robbery under section 295 as read with section 296 (1) of the Penal Code. The two sections provide as follows: -
According to Mr. Musomba, the particulars of the offence facing the appellants in this matter simply referred to use of personal violence on the victims and also referred to a joint enterprise with a dangerous weapon. The evidence however was at variance because the victims did not testify to personal violence having been used against them while the purported weapon was only a fake. To that extent the charge sheet was defective since the facts fit into the definition of robbery under section 295. To put it differently, in his view, section 296 (2) under which the offence was charged has three elements of aggravated robbery:
· “armed with dangerous weapon”
· “in company with one or more others”
· “wounds, beats, strikes or uses personal violence”
Mr. Gumo, the Assistant DPP supported the conviction and sentence and urged us to uphold them.
We have anxiously considered the record before us and the submissions of both counsel on the issues of law raised. We think it would be prudent to deal with the issues raised by Mr. Musomba for the 2nd appellant first as they are not entirely novel but were argued with some dexterity. We say so because Mr. Musomba has advanced similar arguments before in relation to the construction of sections 295 and 296 of the Penal Code, but his construction was overruled. That was in the case of Joseph Onyango Owuor & Anor. vs. Republic Cr. Appeal No. 353/08 (ur), which Mr. Musomba did not draw our attention to. We may reproduce the argument advanced at the time and the holding of this Court thereon:
“In urging the appellants’ respective appeals Mr. Musomba put forward various arguments. Firstly, he submitted that section 296 (2) of the Penal Code as worded does not create an offence but merely makes provision for punishment for the offence of robbery with violence. Section 296(2) of the Penal Code, provides as follows:
“296 (2) if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
Mr. Musomba submitted that unless the aforequoted sub-section is read with section 295 of the Penal Code, then reliance on section 296(2), above, without more will not disclose the commission of an offence. Section 295 of the Penal Code defines the offence of robbery. Section 296(1) and 296(2) of the Penal Code, have a common marginal note, namely “punishment of robbery”. In this country marginal notes are as a general rule, read together with the section. By the ejusden generis rule section 296 (1) and 296 (2), have to be read together. Section 296(1), above, provides that a person who commits the felony of robbery is liable to imprisonment for fourteen years. So that when dealing with the offence under section 296(2) of the Penal Code one has to read the statement of the offence as referring to the aggravated circumstances of the offence, or the robbery provided for under section 296(1) of the Penal Code. It is no wonder therefore the 2nd schedule of the Criminal Procedure Code, provides for one standard form for an offence under both section 296(1) and 296 (2) of the Penal Code. The Standard Form reads as follows:
“8 – ROBBERY
Robbery with violence contrary to section 296 of the Penal Code.
PARTICULARS OF OFFENCE.
As we stated earlier, the marginal note provided under sections 296(1) and 296 (2) is one, namely, “punishment of robbery.” For the foregoing reasons, it is our view that Mr. Musomba’s argument has no merit.
Likewise the submission that the violence envisaged under 296 (2) is different from that envisaged under section 295 of the Penal Code is untenable. Section 295, does not deal with the degree of violence being merely a definition section. It is analogous to section 268 of the Penal Code which deals with the definition of “stealing” and subsequent sections which deal with different categories of the offence of stealing. Sections 296 (1) and 296 (2) of the Penal Code deal with the specific degrees of the offence of robbery and have been framed as such.
“77(8) No person shall be convicted of a criminal offence unless that offence is defined, and the penalty therefor is prescribed, in a written law.”
Following his earlier submission that the statement of the offence for an offence under section 296 (2) of the Penal Code did not disclose an offence Mr. Musomba submitted that because of that fact, appellants were prejudiced. In view of what we stated earlier in this judgment this submission is untenable. That is also true concerning the submission that the particulars of the offence for all the robbery counts are duplex. The particulars merely disclose different ways of committing the offence of robbery with violence under section 296 (2) of the Penal Code.”
We perceive that the arguments raised in that case are the same in substance to the arguments made before us. That is particularly so on the submission that the “violence” envisaged in section 295 is different from that envisaged under section 296 (2). But, as stated in the earlier decision, section 296 (1) and 296 (2) deal with the degree of violence which section 295 does not. In answer to the issues raised by Mr. Musomba therefore, we apply the earlier findings of this Court on the law and reject them. The argument, as we see it, was an attempt to escape the rigours of this Court’s decision in Johana Ndungu v Republic Cr. Appeal No. 116/1995 (UR) without attempting to distinguish that authority. The Ndungu Case emphasized the three elements of robbery with violence under section 296 (2) but found no duplicity in charging all three elements in one count, even when the evidence may elicit no connection with one or two of those elements. In the nature of things, all three elements may or may not be present in one robbery incident, but the offence will be complete if only one of those elements is proved. We shall let the court speak for itself:
“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in section 296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
The facts in this case establish that the 2nd appellant was in the company of one other person in the joint enterprise of the robbery. That element alone must be read in conjunction with section 295 whose essential ingredient is “use or threat to use actual violence.” All the victims testified and were believed that they were threatened with the use of a firearm and ordered to lie down in the boat, which orders they complied with. It would be idle to argue that that did not amount to a threat to violence. It was calculated to cause fear and apprehension that immediate and unlawful violence was about to be visited upon then. It was a violation of their right to do what they wanted in the boat and instead had to do what they were commanded to do by the assailants. In Abubakali & Another v Uganda [1973] EA 230, the predecessor of this court discussed a parallel argument with respect to section 274 (2) of the Penal Code which is similar to section 297 (2) of the Penal Code except for some textual differences and stated:
“He then submitted that the evidence in this case showed that there was no actual physical assault but only the use of firearms to intimidate the by-standers and employees of the company.
As for the submissions that there was failure to re-evaluate, we agree with Mr. Menezes that there was an inexplicable lapse by the superior court in failing to note the recorded fact that the 4th accused had died and his case was terminated. We do not agree however that the omission vitiates the entire record of the superior court which in our view, substantially met the standards of re-evaluation sufficient to resolve the issues of fact and law before that court. As we have said before, there is no set format to which re-evaluation of evidence should conform. It depends on the circumstances of each case and style of the first appellate court, but the test in the end remains a question of substance. See Uganda Breweries Ltd v Uganda Railways Corporation [2000] 2 EA 635 at page 641.
We also think the defence of the 1st appellant was considered and found wanting in the light of overwhelming prosecution evidence. As correctly observed by Mr. Gumo, it dwelt on the day and circumstances of the appellant’s arrest and did nothing to dent the prosecution case.
Orders accordingly.
Dated and delivered at Kisumu this 28th day of July, 2011.