REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CRIMINAL APPEAL NO. 58 OF 2002
JAMES MURIUKI KAMAU……………………..….………………….APPELLANT
Versus
REPUBLIC……………………………………………….…………….RESPONDENT
CRIMINAL APPEAL NO. 60 OF 2002
FRANCIS MAINA WERU……………………………………………….APPELLANT
Versus
REPUBLIC……………………………………………………..……….RESPONDENT
(Appeal against judgment by Mrs. M. R. Gitonga,
then Senior Resident Magistrate, dated 13th
February 2002, In the Chief Magistrate’s Court at
Nyeri, Criminal Case No. 533 of 2001).
JUDGMENT
The two Appellants jointly with one Charles Nderitu Gakuru who died after
conviction and sentence, were charged with the offence of robbery with violence contrary
to Section 296 (2) of the Penal Code. It was alleged that on 11th February 2001 at Rititi
Trading Centre in Nyeri District, the three accused persons jointly with others not before
court, while armed with dangerous or offensive weapons, namely Toy pistol, pangas, Iron
bars, simis and clubs, robbed Lydia Gathigia Nyamu, one B/W T.V. make Sanyo S/No.
192622, one radio cassette make Phillips S/No. 700503, One Afrigas Cylinder, and
Sewing Machine Head make Singer S/No. 054057, and a Thermos Flask all valued at
Sh.28,300/= and that they used actual violence to the said Lydia Gathigia Nyamu during
that robbery.
Each of the two Appellants faced a separate count alleging handling of stolen
goods contrary to Section 322 (2) of the Penal Code. But all the Accused persons were
convicted of the offence of robbery. We consolidated the two appeals for hearing the
Appellants prosecuting their appeals in persons. The Provincial State Counsel, Mr.
Orinda, opposed the appeals.
We have found it difficult to see coherence or consistency in parts of the
prosecution’s case. But we have been able to see that Lydia Gathigia Nyamu, PW1, was
in her house at about 9.00p.m. with a small son when she saw two men at the door, one of
them wearing something on his face. She greeted them and when she inquired from them
what they wanted, one of them pulled out what looked like a pistol and pointed it at her.
She panicked and started screaming running towards her bedroom. She was hit on the
head with an object and was cut on her hand. She fell down unconscious and only gained
consciousness when in Tumutumu Hospital admitted. She was subsequently taken to
Aga Khan Hospital and Kenyatta National Hospital for further treatment. Although there
was light from electricity in her house, she had neither identified any of her attackers nor
noticed them take anything from her house. It was while she was in hospital that she
learned that those who attacked her had carried away some of her things from her house
and three suspects had been arrested, one of them her former employee.
Michael Mumenya Nyamu was P.W.1’s son who was with her in the house at the
time of the attack. His age was not revealed and gave evidence as P.W.2 on oath the trial
magistrate recording that the witness could do so. The robbers do not appear to have
been bothered by this boy’s presence in the house. His evidence is like that of his mother
concerning the incident in the house. But unlike his mother, this witness saw the items
mentioned in the charge being taken from his parent’s house by the robbers. He did not
identify any of the robbers including Accused two said to have been his parent’s
employee previously and could not therefore pick anybody on the identification parade
although the police, according to his evidence, had told him to go and pick Accused two.
P.W.3, Purity Mwangi Maina, told the court she was also in the house of P.W.1 at
the time of the attack although neither P.W.1 nor P.W.2 had mentioned P.W.3 and her
presence. She said she was also in the kitchen. She heard P.W.1 screaming in the sitting
room and on going to check she was accosted by two men who made her lie down where
P.W.1 was lying. She did not refer to the presence of P.W.2 and the fact that P.W.1 had
been beaten and was unconscious. Like P.W.2 she saw the items mentioned in the charge
being taken by the attackers. Using electricity light which was in the house, P.W.3 was
able to identify the person who had hurt her. She picked him at the identification parade.
He was the Second Appellant and P.W.3 told the court that she was able to identify him
because he hurt her, held her and she noted his face and appearance. But she said some
members of the parade were tall others short, some dark others light. That contradicted
what P.W.12 told the court. After being injured, she was treated at Tumutumu hospital
and discharged.
Ephraim Nyamu Weru was the husband of P.W.1. He gave evidence as P.W.4
stating that he was away when the robbers attacked. He returned home to find the police
and members of the public present. He was informed of the robbery and of the fact that
his wife had been injured and taken to Tumutumu hospital unconscious. At home he
noticed the items stolen. He said that on 26th February, 2001 he was called to Karatina
Police Station where he was shown stolen and recovered items from his house and he
identified them. He added that he was present when accused persons were arrested
including Accused two who had been their employee and that he was also present when
the exhibits were recovered. He went on to say what was recovered from each Appellant.
The prosecutor ended the evidence of this witness in Chief without making him
say how and where he was present when accused persons were arrested in his presence
and exhibits recovered in his evidence. His earlier statement was that he was called to
Karatina Police Station where he was shown recovered items. How did he again come to
see them being recovered? It is during cross-examination that this witness tried to show
how he was present. The prosecutor ought to have done better than this if he knew the
essential ingredients he was supposed to prove in this case. What came out was that
P.W.4’s evidence during cross-examination was at variance with his evidence in chief
and we cannot know which part of his evidence to follow. Noted is also the date of
handling stolen goods in the handling counts. The date is 18th February, 2001 yet
P.W.4’s date is 26th February 2001.
When it comes to the evidence of P.W.5 Justus Maina Kengi and P.W.6 James
Muthee Munga, both are talking about one incident, sale of the T.V. to P.W.6 by the First
Appellant. But their evidence was left with some inconsistencies. Each one of them was
at his place of work. P.W.5 at Mt. Kenya Butchery. P.W.6 at Quality Butchery Karatina.
It is not clarified whether both butcheries were in Karatina Town. But even if they were,
it was not clarified whether they were together and how P.W.5 in his butchery knew what
P.W.6 was doing in his butchery concerning the T.V.
P.W.5 referred to P.W.6 as his colleague without clarification how the two were
colleagues. From their evidence, the two appear to have been together from the
beginning to the end. But P.W.5 said that the First Appellant wanted to sell the T.V. to
bail out a relative who was in remand, while P.W.6 told the Court that the First Appellant
wanted to sell the T.V. because someone was sick.
P.W.6 said the First Appellant went to him on 12th February 2001 and that is the
date P.W.5 also mentioned. But in the end P.W.6 said that the police who recovered the
T.V. went to him at 2.00 a.m. on 8th February 2001. He said it was the First Appellant
who took the Police to him.
P.W.5 first said that the First Appellant went to them with the T.V. But at the end
of his evidence in chief, P.W.5 said that the First Appellant went and brought the T.V.
The prosecutor, Inspector Muriuki, ought to have seen all those discrepancies to
remove or avoid them for that was one of the reasons why he was doing that job. He
failed.
In any case, it seems to us that what P.W.5 and P.W.6 were saying in the court
was that the First Appellant took the T.V. to both of them and eventually sold the T.V. to
P.W.6 for Sh.3000/= with P.W.5 acting as a witness and that the First Appellant gave
them a receipt with the name Fredrick Maina Wachira when they knew him as a radio
repairer James Muriuki Kamau whose name is printed on his shop. They recorded an
agreement at the back of that receipt and signed it retaining the T.V. until the police
recovered the T.V. when the police went with the First Appellant under arrest.
Jesse Ndegwa Githaiga, a mechanic owning a garage gave evidence as P.W.7. He
told the Court that his motor vehicle Reg. No. KQT 608 was hired by the First Appellant
to a place called Kanyama where the First Appellant said his house was. Apparently the
motor vehicle which had a battery problem did not reach the house but the First
Appellant whom P.W.7 knew before that date and the Second Appellant whom P.W. 7
had not known emerged jointly carrying a gas cylinder in a sack. They put the cylinder in
the motor vehicle’s boot and P.W.7 drove the vehicle with the two men and the cylinder
on board, back to his garage in Karatina town to repair the cylinder. There was a part
which was spoilt. The battery was also down. P.W.7 took it to Karatina. The gas
cylinder was repaired and collected the following day by the First Appellant assisted by
P.W.8, Douglas Gichoki Mweiga The manner in which the gas cylinder was handled
from P.W.7’s garage back to the First Appellant is not clear as suspicion seems to have
been in the air.
Police Constable Joseph Ndirangu, P.W.10, was the arresting officer. Acting on
information from an informer and in company of other police officers, they went to
Karatina Town and arrested P.W.7 as a taxi driver who had allegedly carried the stolen
items. P.W.7 led them to the Second Appellant. The Second Appellant was arrested and
a radio, a rain coat similar to those worn by police, a toy pistol and a plain receipt
recovered. That was on 18th February 2001.
The Second Appellant led the Police to the house of the First Appellant who was
found and arrested and a gas cylinder and a sewing machine head recovered. The
Appellants were taken to Karatina Police Station.
The Second Appellant led the Police to the home of Accused two who was also
arrested before all the suspects were taken to the Police Station.
On 19th February 2001 the First Appellant led the Police to a butchery where the
First Appellant said he had sold one T.V. set. The said T. V. set was recovered and the
receipt at the back of which there was the sale agreement bearing names Fredrick Maina
Wachira and James Kanake and the purchase price of Shs3000/=.
In their defence, each Appellant denied that he was one of the robbers. They
mostly dwelt on their respective arrests. The First Appellant told the court that he did not
rob anyone. He said that on 16th February 2001 he was in his shop where he used to sell
clothes when Accused two went to the shop, selected some clothes he wanted to buy but
said he did not have cash and would sell a gas cylinder to get the money. He asked the
First Appellant to keep the clothes for him and that was done. The following day
Accused two took the gas cylinder to the First Appellant’s shop saying he had failed to
find a buyer. The evidence is not clear although the First Appellant made his defence on
oath. It would appear that the First Appellant was still having the clothes claimed to
have been selected by Accused two and was also having the gas cylinder when the Police
arrested him and recovered the gas cylinder.
We note that during the cross-examination of P.W.7, while it was the Second
Appellant’s case that he was just assisting the First Appellant to carry the gas cylinder, it
was the First Appellant’s case that he had the gas cylinder because he had attached it for
a debt.
In his unsworn defence therefore the Second Appellant did not say anything about
the gas cylinder. He talked about his arrest by the Police at his home and taken to the
Police Station and how the Police treated him. Generally his defence was that the house
in which he was found when arrested, though in his home, did not belong to him.
The learned trial magistrate recorded the defence of every accused person. But
before us in these appeals, each Appellant has told us that what he said in his defence was
not recorded. The correct position is that the defence was recorded but when it was
considered in the judgment, the learned magistrate rejected the defence. Different name
in the receipt issued to P.W.6 when he bought the T.V., the defence, the fact that
recoveries and arrests were effected seven days after the robbery – whether in the
circumstances there could be recent possession, were all considered by the trial
magistrate.
The questioning of the evidence of P.W.5, P.W.6 and P.W.7 by the Appellants
was not done before the trial magistrate. Those witnesses were cross-examined by the
Appellants who never challenged the witnesses to show that they were not credible
witnesses.
As we indicated at the beginning, coherence or consistency lacked in some
respects of the evidence adduced. It now emerges that the problem was not only on the
side of the prosecution. It was also on the side of the Appellants. In the circumstances
therefore and doing our best, we come to the conclusion that there was sufficient
evidence to sustain conviction of the Appellants on the following grounds:-
Firstly, robbery as alleged in the charge was proved. P.W.1 and P.W.3 were
injured and the former lost consciousness and spent several days admitted in hospitals for
treatment. During the incident, the attackers were more than one, armed with offensive
weapons and robbed the items mentioned in the main charge.
Secondly, there was a Charge and Cautionary Statement recorded from Accused
two. That statement incriminated Accused two and the Second Appellant in the robbery.
The statement was admitted in the evidence without objection. Accused two died after
conviction and sentence. The statement remains against the Second Appellant although it
is evidence of the weakest nature against him. But the Second Appellant was identified
by P.W.3 at the scene of the robbery and P.W.3 was able later to pick him at the police
identification parade.
Thirdly, the evidence of P.W.5 and P.W.6 relating to sale of a T.V. by the First
Appellant and evidence of P.W.7 and P.W.8 relating to hiring of his motor vehicle, which
transported the gas cylinder which he repaired and was returned to the First Appellant,
the hirer of P.W.7’s motor vehicle.
Fourthly, evidence of recoveries by P.W.10 the arresting officer. From the First
Appellant were recovered the gas cylinder, a sewing machine head and the T.V. he had
sold to P.W.6. From the Second Appellant were recovered a radio cassette Phillips
SN700503.
Fifthly, identification of recovered exhibits by P.W.1, P.W.2, P.W.3 and P.W.4.
From the totality of all that evidence, we are satisfied that the learned trial
magistrate was justified in rejecting the defence advanced by the Appellants. Their
conviction was proper and we find no good reason to interfere with any of the sentences.
Accordingly, we do hereby dismiss each of these two appeals.
Dated this 18th day of November 2004.
J. M. KHAMONI
JUDGE
H. M. OKWENGU
JUDGE