Republic v Marwa & another (Criminal Case 178 of 2012) [2013] KEMC 113 (KLR) (26 November 2013) (Judgment)
Neutral citation:
[2013] KEMC 113 (KLR)
Republic of Kenya
Criminal Case 178 of 2012
PA Ndege, Ag. PM
November 26, 2013
Between
Republic
Prosecutor
and
Dancan Mwita Marwa
1st Defendant
David Chacha
2nd Defendant
Judgment
1.The 2 defendants herein, Dancan Mwita Marwa and David Chacha (hereinafter referred to as the 1st Defendant and the 2nd Defendant respectively) have been jointly charged with the offence of Robbery with Violence c/s 295 as read with 296(2) of the Penal Code. They both denied that on 19/04/2012 at Nyaigutu Village, Bukiira Central Location in Kuria West District, within Migori County, jointly with others not before court and while armed with offensive weapons namely AK 47 riffles, simis, torches and iron bars, they Robbed Mary Mugosi Handa cash Ksh. 74,000/=, gold worth Ksh. 600,000/=, 1 radio make Panasonic radio cassette S/No. 2GA002232, Model RX-CT880M2, a mobile phone makes Techno, all valued at Ksh. 686,000/= the property of the said Mary Mugosi Handa and at the time of such robbery shot dead one namely Thomas Mugosi Handa.
2.On the night of 19.04.2012, PW1, Mary Mugosi Handa, and her husband, Thomas Mugosi Handa, now deceased, were attacked while with their daughter, PW3, Nyambese Pauline Mogosi, while at their house. PW1, Mary Mugosi Handa, informed the court that she was able to identify the 1st Defendant herein using the light from the torches which the attackers had. That the 1st defendant herein used to sell gold to her. That in the process of the robbery, her husband, Thomas Mugosi Handa, was shot and died while being rushed to the hospital for treatment. She confirmed to the court that the robbers, including the 1st defendant, were able to steal or take away their gold, 2 mobile phones, a Panasonic radio, PExh. No. 1, and cash Ksh. 74,000/= which she had remained with after purchasing the gold.
3.Earlier on the robbers had attacked PW5, Emmanuel Marwa Handa, PW6, James Merengo Handa And PW7, Boke Marwa Handa.
4.PW6, James Merengo Handa And PW7, Boke Marwa Handa were able to identify the 2nd Defendant herein as one of the attackers.
5.The attack was immediately reported to PW8, No. 21XXX CI Charles Kipchumba, who responded to the scene immediately, but found when the complainants herein were away, having rushed the deceased herein to the hospital. Later on, 20/04/2012, he again visited the scene where they met with the complainants herein. That PW1, Mary Mugosi Handa, informed him that she was able to identify the 1st Defendant herein who was known to her by appearance. That the 1st defendant was traced and arrested on 22/04/2012 and charged with the offence herein.
6.On 01/05/2012, the Panasonic radio that had been stolen during the robbery attack, PExh. No. 1, was recovered with some shoes, PExh. No. 3, while abandoned in a farm next to the complainant's home.
7.PW2, Daniel Nyamohanga, a cobbler at Kuritiyange, recognised the shoe to belong to the 2nd defendant herein. He informed the court that he used to mend them for the 2nd Defendant who used to be his client.
8.PW4, Daniel Mwita Murimi, was also able to recognise the shoes to belong to the 2nd defendant herein who used to be his neighbour.
9.The recovery report was passed over to PW8, No. 21XXX CI Charles Kipchumba, who then also went and arrested the 2nd Defendant herein.
10.Some identification parades were subsequently conducted by PW9, No. 23XXXX CIP Joseph Njue, on the 2 defendants herein as per PExh. Nos. 5A and 5B.
11.PW10, Vitalis Owuor Koguta, a Medical Officer confirmed that the deceased herein was shot and killed. He produced the Post-mortem Examination Form as PExh. No. 6.
12.Both defendants herein in their defence denied committing the offence.
13.The 1st defendant also called his wife, DW3, Susan Mwita Maroa, to strengthen his alibi that they were together in their house on the night of the attack herein.
14.The 2nd defendant on the other hand questioned the fairness or otherwise of the identification parade herein. That he was surprised when he was suddenly arrested on 30/04/2012 for the robbery attack that happened on 19/04/2012, yet he has all along been at home.There were submissions for all the parties herein.
15.Learned counsel for the 1st defendant began with attacking the charge herein for being duplex. That the charge charges the defendant with 2 separate offences in one count which is prejudicial. According to him the shooting dead of the deceased herein should have been charged separately.
16.With due respect to the learned counsel, Section 296(2) of the Penal Code provides as follows: -
17.The shooting dead of the deceased herein has been used herein simply to prove that the defendants herein wounded and therefore used personal violence on the deceased while committing the robbery herein and as defined in the above provisions.
18.The main issue herein is that of identification. The main identifying witness for the 1st defendant herein is PW1, Mary Handa. She knew the 1st Defendant herein by appearance before. She informed the court that she used to buy gold from him before. I do find that she positively identified and /or recognised him using the light from the torches that the defendant had. She reported the same to PW8 when she met with him which was not immediately. PW8 informed the court that he did not meet with the complainants herein immediately because they were attending to the injured deceased and the complainant herein, PW1, being the wife to the deceased was expected to have been emotionally and bodily overwhelmed at the time. She did not have to falsely implicate the 1st defendant herein with the offence herein. She had no advantage to gain by falsely implicating him. She saw him and this identification did not require an Identification Parade given that she knew him by appearance before. This fact that she saw the 1st defendant herein obviously displaces the 1st defendant's alibi herein. He could not have been at his house with his wife, DW3, throughout the night when PW1's overwhelming evidence places him at the scene at the same time.
19.PW6 and PW7's identification evidence of the 2nd defendant herein, initially appeared weak and suspect. Their evidence has however been corroborated and therefore strengthened by PW2 and PW4's evidence that the shoes, PExh. No. 3, that was recovered alongside the stolen radio herein, PExh. No. 1, belongs to the 2nd defendant herein. They also had no reason or advantage to gain by falsely implicating the 2nd defendant herein. It cannot be by coincidence that the 2 witnesses identified him; and then his shoes are found with the stolen radio herein.
20.I find both defendants herein guilty of the offence of Robbery with Violence c/s 295 as read with 296(2) of the Penal Code and as charged herein. They jointly committed the offence herein, while armed with dangerous and offensive weapons, including a firearm which the witnesses herein confirm to have been fired and, in the process, used to wound and kill the deceased as was confirmed by PW10.
21.I consequently do hereby convict both of the offence pursuant to section 215 of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS 26TH DAY OF NOVEMBER, 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court interpreter: MagigeCourt prosecutor: CIP MachariaDefence counsel: Absent1st Defendant: Present2nd Defendant: PresentCIP Macharia: We are treating them as first offendosrs1st accused in Mitigation : My advocate not present. His clerk is present.CT: I note the presence of Mr. Abisai clerk; Daniel Chacha1st Defendant in Kiswahii: I will proceed. Let me be forgiven. I have children who are going to school. Let me be forgiven.2nd defendat: I will pray for proceedings. The matter was done in open court. Just praying for proceedings. Nothing else.CT: Mandatory death sentence. Both defendant to undergo death sentence by hanging as provided by law once the 14 days appeal period is exhausted. R/A 14 days explained.ALOYCE PETER NDEGEAG. P. M.