W1C001K
JUDGMENT
The Appellants were convicted in the court below of unlawfully being in possession of heroin contrary to s. 9 of the Dangerous Drugs Rules as read with s.14(1)(c) of the Dangerous Drugs Act Cap 245 punishable by s.18(2) of that Act and were each sentenced to 4 years imprisonment and repatriation. They now appeal against conviction and sentence.
The cases against the Appellants were conducted under separate files in the court below, but we have been asked to consider these matters together. There were two appeals of a similar nature which were conceded by the State, and we ordered retrials in both those cases.
In these remaining appeals has argued the question of language very strongly. In the course of that argument we decided to request the Learned Trial Magistrate to explain what some of the writings on the files meant. In his reply we received explanations, and we will deal with those in due course. In addition to the explanations we received information additional to the record which we do not think we should consider in this appeal, since we are bound by the record.
We have set out the position as we understand it as to the <-/receording> of the language of the court on many previous occasions, and we do so once again.
The matter turns on the question of language. The reason for this is that the Appellant is recorded to have replied to the charge "I admit the charge", and following v. R. (1975) E.A.5, and v. R. (1977) K.L.R. 143, that plea required further investigation. However, failure to conduct that investigation can be cured under s.382 Criminal Procedure Code if the facts are then read out and the Appellant agrees to them, providing the facts amount to the offence before the court. That is of no use however unless the appeal court can be satisfied that the Appellant understood the facts.
There are other and more basic reasons.
Section 77 (2) of the Constitution is the basis for the procedure and the requirements for a person charged with a criminal offence:-
b) shall be informed as soon as reasonably practicable in a language which he understands and in detail, of the nature of the offence charged.
We are of the view that this provision relates to what shall be done by the Police in the Police Station, so far as normal procedure goes at any rate.
f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge.
It should be noticed:
1. That the Constitution does not require the language of the trial to be recorded
and
2. That the Constitution does not require the proceedings necessarily to be conducted in the first or home language of the Appellant, but in a language he understands.
Section 207 (1) of the Criminal Procedure Code provides for the taking of a plea in the subordinate court, but does not refer to interpretation.
The languages of the subordinate court are English and Swahili: the language of the High Court is English. One can expect the Subordinate Court to proceed in English or Swahili: in practice charges are drawn in English, and the Court usually, although not always, proceeds in that language. Any other languages used are translated to the language of the Court. This usually, although not always, applies to Swahili as well.
In v. R., which has become the leading authority on the way to take a plea, it is required that the charge and all the essential ingredients of the offence should be explained to the accused in his language or a language he understands.
"The courts have always been concerned that an accused person should not be convicted on his plea unless it was certain that he really understood the charge and had no defence to it. The danger of a conviction an equivocal plea is obviously greatest where the accused is unrepresented, is of limited education, and does not speak the language of the court."
"When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand."
has provided us with a list of authorities which include the following cases:
v R, v R HCA 753/82, & ors HCA 615/87, v R (1975) E.A.5, v R (1973) E.A. 540, v R (1957) E.A.55, v R (1977) K.L.R. 143, v R (1951) 18 E.A.C.A. 307, & ors (1942) 9 E.A.C.A. 65, R v (1944) 1 E.A.C.A. 110, R v (1950) 17 E.A.C.A. 125, v R (1953) 20 E.A.C.A. 339, v R (1963) E.A. 38, and v R (1957) E.A. 429. We are grateful to for his industry and the help with which he has provided us. We think we have fairly set out above the matters which arise from these cases.
It seems to us that the question at the root of all this is the question of whether the Appellant understood the charge.
Where it is recorded that there was interpretation at the request of the Appellant, and into what language there was interpretation and by whom it was done, there is no problem. This is why it is good practice to make a record of such matters.
But of course, when conducting an appeal, this court is bound by the record before it. It must appear from the record that the Appellant understood what was being said in the court below.
Now it can be argued that "<_foreign>", that is that no magistrate would conduct proceedings in such a way that he was aware of the fact that an Appellant did not understand what was going on, but did nothing about it.
But these are cases in which already the magistrate has failed to go further into the matter than a plea of "it is true" or "guilty" or "I admit the charge": it would be wrong therefore to apply such a presumption.
The question of whether an Appellant understood the proceedings in the court below must appear from the record, in order that we may use our discretion under s.382 of the Criminal Procedure Code in support of the conviction.
Since the whole point is whether the Appellant understood what was going on, we would not always expect to see an application by the Appellant in the Court below for interpretation.
But in some cases it is clear from the records that an Appellant took active part in the proceedings, and in others that he did not. In some cases the Appellant will add details to the facts given by the prosecutor, or make a sensible plea in mitigation, which often is able to show, from the record, that he understood what was going on.
In other cases the reply to the charge may be such as "it is true" followed by "agreed" to the question as to whether he admits the facts, followed by nothing in mitigation. Cases like that are of concern: it is impossible to see how the appeal court can be satisfied from the record that the Appellant followed the proceedings in the court below.
That is why it is good practice to record the question of interpretation: if that is done it would be unlikely that the appeal court would decide that although interpretation was provided, it was in a language which the Appellant did not understand.
Nor can it necessarily be assumed that any person before the subordinate court can be taken to understand English, any more than he can necessarily be taken to understand Swahili. It all depends upon what appears from the record. As is said in 's case:-
"It might be added that while the idea of stealing is one universally known, it does not follow that every language has a word corresponding to the English word "steal" which excludes a taking under a bona fide claim of right."
Dealing with the cases of the Appellants in turn:
1st Appellant
In this case the interpretation is recorded as "E/S" which we have no doubt whatever means that the proceedings were conducted in English and translated to Swahili. We have some difficulty in understanding why this should have been done for a Nigerian. It was for this reason that we required an explanation of the Learned Trial Magistrate of this expression. His reply was that it stood for "English and Swahili". He added some gratuitous information on this subject which we think it right to ignore, since we must go by the record, and nothing has been added to it by way of Notice of additional evidence.
He replied to the charge "I admit the charge". When the facts were given he replied "Facts true and admitted". It does not appear that he was invited to mitigate at all.
2nd Appellant
In this case the interpretation is recorded as "English/" We thought that the inclusion of an oblige (/) after the word English might have had some extra significance and we inquired about that too. According to the explanation of the Learned Trial Magistrate it does not.
This Appellant is recorded as having answered to the charge "I admit I had heroin as alleged". After the facts had been read he said "Facts true and admitted". Again he does not appear to have been invited to mitigate.
3rd Appellant
In this case the interpretation is recorded as "Kisw/Eng" which we have no doubt means that the court now switched to conducting its proceedings in Kiswahili, which it is entitled to do if it wants, interpreting the matter into English: which seems rather laborious for someone who is unlikely to understand Kiswahili. But the record is so clear we did not ask for an explanation from the Learned Trial Magistrate.
In answer to the charge the Appellant is recorded as having said "I admit the charge". After the facts were given he said "facts true and admitted".
He also appears to have been invited to mitigate: recorded as his mitigation is "Nil".
The basis of 's case is that from the record we have no idea of what language the Appellants can actually speak and understand. Indeed in the cases of the 1st and 3rd Appellants that is quite true. There is no basis upon which we can see from the record whether those Appellants understood what was going on.
In the case of the 2nd Appellant however, the language in which the proceedings were conducted is recorded, and we would not in those circumstances leap to the conclusion that the Learned Trial Magistrate caused the question of interpretation to appear on the record, and then deliberately conducted the proceedings in a language which the accused did not understand.
In those circumstances we would dismiss the appeal of the 2nd Appellant against conviction, being satisfied that his plea was shown by the record to be unequivocal. So far as sentence is concerned, the sentence was no more than an offender can expect in such cases, and we cannot say that it is excessive, even for a first offender. His appeal against sentence is therefore also dismissed.
So far as the 1st and 3rd Appellants are concerned however, we cannot say the same, and their appeals against conviction are allowed, convictions quashed and sentence set aside. These are serious cases and we would not think that an injustice would be done if the Appellants were to be retried. We therefore order that this case be mentioned before the Chief Magistrate for reallocation to another magistrate of competent jurisdiction for retrial.
We would only add that drug cases, and in particular transport of drugs through Kenya are becoming such a serious problem that we would appreciate it if Trial Magistrates were to bear more carefully in mind the manner of taking a plea, and in particular the necessity of recording the language in which the proceedings were conducted, and why. These offences need to be dealt with expeditiously and properly if offenders are to be persuaded that Kenya is not the transit point to use.
Delivered at Nairobi this 19th day of August, 1991.
J2K
Judgment
The Appellant, , was convicted after trial on two counts of robbery with violence contrary to section 296(2) of the Penal Code by the Senior Resident Magistrate, Nairobi. He was sentenced to death. His co-Accused named in the charge was acquitted on both counts.
Briefly, the prosecution case was that the 2nd complainant, (P.W.1) who is a business lady, owned a butchery at Mlango Kubwa within Nairobi Area where she and her husband (P.W.3) had employed the 1st complainant, (P.W.2).
On the night of 3rd August, 1989 at about 10 p.m., while (P.W.2) was working in the said butchery, some four African men entered the butchery and found him alone. One of the said men (not the Appellant) was armed with a pistol which he pointed at him as he ordered him to produce some money. When he replied that he did not have any money, he was ordered to raise up his hands. The said men then took sh.1,300/= from his pocket and another sh.40/= in silvers from the cash box. They demanded more money from him and he told them that his boss had just taken the money. A that stage one of the said gangsters stated that there she comes and he saw him getting out of the butchery and shortly thereafter he came back with (P.W.1). He says that the said man was the Appellant.
In her evidence, (P.W.1) testified that on the material night, at about 10 p.m. she left their shop for their butchery which was about 200 yards away.
Before she reached the butchery, a man came from the butchery to meet her. This man, she says, is the Appellant. As the Appellant walked back with her to the butchery, he told her that she had some fresh meat.
As they entered the butchery, the Appellant took the plates which he was then carrying and threw them down. He removed her coat and told her to give him all the money that she had. As he started taking the money, she realised that he was a thief and she screamed once. She was then hit on the head and she fell down.
When she stood up, she was hit by an axe. Then another man came and placed a pistol on her chest. They then removed cash sh.300/= from her jacket and her oris wrist watch valued at sh.500/=. They also took her leather jacket valued at sh.1,500/= and as they went out, they also took <+_a> weighing machine valued at sh.5,000/=. The whole incident took about 8 minutes. It was the man with the pistol who left the butchery last and as he went out, says that she came out and screamed. She tried to chase them but fainted. She was then assisted by other people who took her to Aga Khan Hospital where she was admitted for 2 days.
(P.W.2) stated that he had not known any of the said gangsters prior to the said incident but says that she had seen the Appellant some 3 days prior to that incident when he came as a customer to her butchery and by then she was selling some cabbages outside the butchery.
The incident was reported to the husband of and the police who came to the scene. No immediate arrest or recovery of the stolen properties was made. Later on the 6th of March, 1989, while (P.W.1) and her husband (P.W.3) were in their shop, a man came there to buy some cigarettes. suspected him to be one of the robbers who had attacked her at their butchery and informed her husband.
According to her, this was the man who had the pistol on the material night. As that man left their shop for a nearby bar, they followed him. Inside the bar, told her husband that she was able to see one other robber who had attacked her. This is the Appellant. The husband of then went to the butchery and called (P.W.2) who also came to the said bar and concurred with that two of the man in that bar were among those who had robbed them. The police were then contacted and when (P.W.4) of pangani Police Station arrived there, both complainants pointed out to him the Appellant and another as <-_member><+_members> of the gang who had robbed them on 3rd of August, 1989. They were arrested and subsequently charged.
The Appellant denied any involvement in the said robbery. He stated that on the 6th of August, 1989, he went to a bar in company of his friend known as . While there, two people emerged from the door in company of a police officer and he was arrested together with another man whom he did not know. He was <-_lead><+_led> out of the bar and after a view minutes a vehicle came and they were taken to the police station. The 1st complainant then came with a P.3 form and a police Inspector asked whether they were the people and she replied that he (Appellant) resembled a person from her area but she could not identify the other man who had been arrested along with him or who had been in his company at the bar and was also arrested. He was later charged on fabricated charges.
On his appeal before us, the Appellant made a lengthy written submission in which he challenged his conviction on grounds that: the learned trial magistrate did not take into account that the circumstances of identification were not favourable for proper identification since the type of lighting available was not described by the witnesses or its intensity or location to the scene of robbery explained. He further complained that there was no warning on the part of the court on the dangers of convicting upon uncorroborated evidence, and that the possibility of a mistake on the part of the identifying witnesses was not excluded.
He further complained that the charge against him was not proved <-/beyound> all reasonable doubt.
There is no dispute that a robbery <-/occured> in the butchery of (P.W. 1) and her husband (P.W.2) where their employee, (P.W.2) was then working. The robbery involved some four men described by the witnesses as being Africans. In the course of the robbery they attacked who had tried to scream hitting her on the head with an object and also cutting her with an axe. The gangsters then made away with some money, a wrist watch, a leather Jacket and a weighing machine. None of these properties were recovered. It was at night at about 10 p.m. (P.W.2) who was in the said butchery much earlier stated that the robbery took about 15 minutes before the said man escaped but (P.W.1) who came later when the robbery was in process stated that it took some 8 minutes. It would therefore appear that the witnesses had plenty of time within which to see and recognise the said robbers.
says that there was light on both inside and outside the butchery at the time of the said robbery. Unfortunately, nowhere in the evidence did she specify what type of light it was, its intensity or where it was located. This is the point the Appellant has quite rightly taken up on appeal. (P.W.2) did not talk of there having been any lights at all.
The learned trial magistrate was apparently aware of this difficulty and tried to fill the gap in the prosecution case by saying the lighting was from the electricity which he found to have been good. He stated in reference to the evidence of :
"First he met her outside there. It was lighted with electricity lights."
With due respect to the learned magistrate, there was no evidence to that effect. It was not open to him to fill in the gap in the prosecution case by theories of his own. This was a misdirection, which, in our view, went to the root of the whole case because this was a case where the main issue was identification. Learned state counsel urged us to hold that there was light at the place. We have no quarrel with that. said so but it is not open to us to say what type of light it was. Moreover, there was no other customer in the said butchery when the robbers struck and we cannot tell whether was still doing any business therein which may require some good lighting.
In a case such as this, where the evidence is based on identification, the court should closely examine the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? And at what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only <-/occassionally>, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material description of the accused given to the police by the witness and his actual appearance? These guidelines were laid down by the English court of Appeal in R-V_TURNBULL AND OTHERS (1976) 3 ALL ER 549: JOHN STELLEN OLE MWENDA-V R-(C.A. cr. Appeal No. 51 of 1988) ( <-/un-reported> ).
In the circumstances of this case, where the Appellant was a stranger to (P.W.2), and although (P.W.1) stated that <-_he><+_she> could recognise him as she had once seen him outside the butchery where she was selling cabbages but had never spoken with him. We consider that it was a substantial error on the part of the trial court to fail to exclude altogether the possibility of a mistake on their part given the fact that the type of lighting at the time was not described. While was certain that the Appellant was the man who had injured her, clearly told the court that he was not certain about that and yet both of them were together. He stated:
"I cannot say with <-/certanity> who injured but from (the) circumstances, I can say that it is you because you went for her and she was okay." (words in brackets are ours).
This shows that he was just guessing and yet he is the one who took a longer time with the gangsters inside the butchery and was himself never under any attack. There was no description of the suspects given to the police soon after the incident by these witnesses so that their subsequent identification could be tested against their earlier report. Where the evidence relied upon to implicate an accused person is entirely of identification, that evidence should be water tight to justify conviction: R-V-EVIA SEBWATO (1966) EA 174.
On our own assessment of the evidence that was adduced in the court below, we are not satisfied that the guilt of the Appellant was proved <-/beyound> all reasonable doubt. In the result, this appeal succeeds and is allowed. We quash the appellant's conviction set aside the sentence and order his immediate release unless he is otherwise lawfully held.
Delivered at Nairobi this 18th day of February, 1992.
W1C003K
JUDGEMENT
The appellant was convicted in the court below of conveying suspected stolen property contrary to section 323 of the Penal Code and was sentenced to six months imprisonment. His appeal to the court is against conviction and sentence.
The case for the prosecution was that on 27th February, 1991 at about midnight PC (P.W.1) and PC (P.W.2) both attached to Jomo Kenyatta International Airport Police Station were on duty at that part of the airport where aircraft are loaded and off-loaded namely the apron, when they saw the appellant, a porter at the airport, come down from the aircraft he was loading. It was a B.A. flight No.054 heading to London from <-/Johanesburg>.
On seeing (P.W.1) and (P.W.2) the appellant seemed worried. Both (P.W.1) and (P.W.2) suspected that he had something with him. On asking him whether he had anything in his possession, he answered that he had a small radio, hidden under his trousers. The appellant was taken 40 - 50 from the place he was stopped, allegedly on his request, and a thorough search conducted. This revealed that the appellant had a <-/Grunding> radio Serial No.88078 made in Taiwan. The appellant was then arrested and informed that he was being arrested for conveying suspected stolen property. The radio was produced as an exhibit in the court below.
Although the particulars of the charge allege that the appellant was "stopped by ......... both (P.W.1) and (P.W.2) in "exercise of the powers conferred by section 26 of the Criminal Procedure Code" none of the two police witnesses in their evidence made any reference to the section. Indeed the procedure adopted at the trial by the court below does not conform with that required under S.323 of the Penal Code (see V.R. (1963) E.A. 109). It is thus clear that neither the court below nor the appellant himself fully appreciated the peculiar nature of the charge that faced the appellant and the burden of proof (as to which we shall revert later) in a charge under Section 323 of the Penal Code.
The appellant in his defence chose to give a sworn evidence. He denied possession of the radio and said it was planted on him. In addition he called two witnesses: a co-porter (D.W.3) and a security officer (D.W.2) at the airport both of whom were working with the appellant in the aircraft at the material time. Both said they were with the appellant at the time he was arrested but they did not see any radio in the appellant's possession. Regarding this evidence, it is worth noting that the security officer was present when (P.W.1) and (P.W.2) arrested the appellant but he was not called as a witness, obviously because his evidence, as it turned out, was adverse to the prosecution case.
In convicting the appellant the Learned Trial Magistrate made a finding which again demonstrated failure by the court below to appreciate the special nature of the charge under section 323 of the Penal Code. The law is that the offender becomes guilty of an offence under S.323 of Penal Code when he fails to give an account to the satisfaction of the court of how he came by the (item) suspected to be stolen. He is not contrary to what the court below thought, guilty because he has failed to shake the credibility and evidence of the prosecution witnesses for there is no onus placed on him to do so.
Where does the burden of proof lie in a case such as this. We think the answer to this question is to be found in the decision in the case of V. R. (1963) E.A. 209. In that Tanzanian case in discussing the Tanzanian section to our s. 26 of the Criminal Procedure Code and s. 323 of the Penal Code said:-
"It is clear that where it is proved that a person has been under the powers conferred by s.24 of the Criminal Procedure Code and that he had at that time in his possession property which may be reasonably suspected of having been stolen or unlawfully obtained the burden shifts to him of satisfying the court as to how he came by the same. The burden is not, however, a heavy one. (as he then was) said in the case of v. R..(3) (1952), 1T.L. (R) 366:
"Where a person charged under this section gives no account to the court of how he came by the property, or gives an account which is false or unreasonable, he is clearly not giving an account to the satisfaction of the court and the court is entitled to convict. But where he gives an account which might reasonably be true and which is consistent with innocent possession, he is, in my view, entitled to be acquitted. The section does not require him to prove that he came by the property honestly."
In the later case of v. R (4), [1962] E.A. 457 (T.) remarked:
"the onus is upon him (that is the accused) to satisfy the court on balance of probabilities that such property was not stolen or unlawfully obtained."
"This observation was made <-/obiter> and, with respect, we think it places the onus on the accused too high. It would seem to accord with the decision in the English cases of R. v (5), [1943] 2 ALL E.R. 156 R. v. (6), [1957] 2 ALL E.R. 737, and R. v. (7) [1962] 2Q.B. 429. We think, however, that there is a distinction to be drawn. 's case (5), was under the Prevention of Corruption Acts, 1906 and 1916, under which a presumption arises against the accused "unless the contrary is proved". 's case (6), concerned the defence of diminished responsibility in relation to which the Homicide Act, 1957, provides that "it shall be for the defence to prove" that by virtue of the section the accused is not guilty of murder. 's case (7), concerned the possession of housebreaking implements by night, which under the Larceny Act, 1916, constitutes an offence unless there is "lawful excuse (the proof of which shall lie on such person)". In all these cases, the burden of proof on the accused was held to be to establish "a balance of probabilities". It will be observed, however, that all these statutes used the word "prove" or cognate words, and this, we think, constitutes the distinction. If the legislature had intended to impose that burden of proof in relation to s. 312, the word "prove" would surely have been used. In using the words "give an account" the legislature must be regarded as having imposed a lesser burden, and if the court is satisfied that the accused's explanation is reasonably probable in the circumstances, the accused is entitled to acquittal, even though the alternative explanation may be slightly more probable."
We agree with the law as stated above. The burden is to explain to the court how the suspected stolen or unlawfully obtained item came to be in the appellant's possession. If the explanation is reasonable the appellant has discharged that burden, There is no burden placed on the appellant to shake the credibility and evidence of the prosecution witnesses and the Learned Trial Magistrate misdirected himself in thinking there was such a burden.
The other issue we have to grapple with in the appeal is whether S.323 of the Penal Code applies to the circumstances of this case. Throughout the trial of this case in the court below, none of the two police witnesses said they had detained the appellant in exercise of the powers conferred by section 26 of the Criminal Procedure Code. Indeed apart from the particulars in the charge, no mention is made, at all, by either the witnesses or the Learned Trial Magistrate of S.26 of the Criminal Procedure Code. In the case of R. v. (1963) E.A.17 the High Court of Tanganyika () held:
"S.312 (which is similar to our s.323) of the Penal Code applies to persons who are brought before the court after having been detained as a result of the exercise of the powers conferred by S.24 (similar to our s.26) of the Criminal Procedure Code and detention in accordance with the provision of s.24 of the Criminal Procedure Code is a pre-requisite for a conviction under s.312."
In a situation such as the instant case in which the prosecution does not even claim that the "stopping" was in exercise of the powers conferred by s.26, it is clearly not possible to find that s.323 of the Penal Code applies. It was therefore quite improper for the court to assume, in the absence of evidence to that effect, that the appellant was detained in exercise of the powers conferred by s.26.
For the above reasons we consider the conviction of the appellant unsafe. The appeal is allowed conviction quashed and sentence set aside. The appellant is to be set free forthwith unless otherwise lawfully held.
Delivered at Nairobi this 17th day of January 1992.
JUDGEMENT
The 1st accused person was initially jointly charged with 2nd accused who died, with 2 counts of Offences Firstly, Robbery, Contrary to section 296(1) of the penal code.
Secondly, Assault, Causing actual bodily harm, contrary to section 251 of the Penal code.
And finally 1st accused is <-_charge><+_charged> with personating a person employed in the Public service, contrary to section 105(b) of the penal code. Particulars of the 3 Counts of offences are as per the charge sheet.
1st accused was acquitted of the 2nd & 3rd counts of offences under section 210 of the C.P.C. as no evidence was adduced to support the charges.
The prosecution's case is that on 1/9/90 at about 8.30 p.m. PW1, the complainant was going to Huruma where he stays. He went to a dark place to Urinate and a gang of people attacked him and robbed him of his 8,000/= & seiko watch. His wife as also attacked and from the scene they recovered a jacket, watch and key. <-/Lateron> 2nd accused went to that house to claim the jacket, watch & key. She was subsequently arrested as 1st accused was.
The accused person in his defence testified that he was at Kahawa garrison where he works as an electrical technician on that day of 1/9/90 & he <-_drink><+_drank> & slept there. DW2 testified that from 8 p.m. they <-_drink><+_drank> with accused who slept at the Garrison & he next saw the accused at breakfast in the Morning. The defence Counsel submitted that in his statement PW1 had recorded that he could not identify the robbers (accused included). But in Court he testified that he could identify the accused & hence not a credible witness.
Having considered all the evidence on record, I find that PW1 indeed disclosed that it was at the point in time when he moved to a dark place to urinate that he was attacked. And in the circumstance I doubt that the darkness could enable him to identify any of his attackers. Possibly, <-_its><+_it's> the association of 1st accused to 2nd accused whose items were found at the scene that led to the suspicion that he was one of the robbers.
Besides, DW2 has, <-/colaborated> the alibi of the accused person that he was at Kahawa Garrision & not at Huruma on that day. I have no reason to doubt this <-/colaborated> piece of evidence.
I therefore give the 1st accused person the benefit of doubt and I acquit him under section 215 of the C.P.C.
ORDER.
The jacket, key & watch of 2nd accused, now deceased to be released to any of her relatives.
W1C004K
Judgment
The Appellant , was convicted by the learned Resident Magistrate, Makadara of the
offence of being in possession of cannabis sativa (Bhang) contrary to section 10 (e) as read
with section 18 (2) of the dangerous Drugs Act (Cap 245. Laws of Kenya). The particulars of
the offence were that on the 9th day of December, 1990 at about 10.16 p.m. at Umoja Estate
within Nairobi area, was found being in possession of bhang (Cannabis Sativa) to wit
two and a half (21/2) sacks weighing approximately 50 kg, not being in the form of medical
preparation. He denied the offence. Upon his conviction, he was sentenced to serve 24 months
imprisonment. He now appeals to this court against his conviction and sentence.
The case for the prosecution was on the 9th December, 1990 about 10 p.m., while
(P.W.1) , (pw2) and , who are attached to Buru Buru Police Station were on
patrol duties, they proceeded to plot No. 116, Umoja 11, Estate, Nairobi acting on information
received that there were some cannabis sativa (Bhang) in one of the houses there. This
plot had five rooms and they were all occupied when they arrived. In one of the rooms, they
found the door locked, but the lights were on. When they knocked on the door and ordered
that the door be opened as they were police officers, the lights which were on were then put
off. The person who was inside the house refused to open. They therefore broke the door and
entered the house. Inside the house, they found the Appellant. He was alone. On searching the
said room, they found some two and half bags of plant material which they suspected to be
bhang (Cannabis Sativa). They arrested the Appellant and called for transport from the
station. They then took the Appellant to the police station together with the recovered plant
material. The same were then taken to the Government chemist for analysis by
(P.W.3) and upon examination, the same were found to be cannabis sativa (bhang) - Ex1
which are classified under the Dangerous Drugs Act. The Appellant was then charged with
the offence that was laid against him. The of the Government chemist was produced in
evidence (EX.2).
In his defence, the Appellant testified that he was not found in possession of any drugs and
that he was never arrested in plot No.116. he stated that he resides in Block No. 176, Umoja
11 estate and called the landlord of that premises, (P.W.2) as his witness.
testified that as a matter of fact, the Appellant is not his tenant, but it is his (Appellant')
brother who is his tenant, of room 3 in his premises on Block No 176 although at times he had
seen the Appellant in the said room.
Regarding the circumstances of his arrest, the Appellant testified that on the material day, he
had travelled from Mombasa at a Nairobi bound De-Luxe bus arriving at Nairobi at about
8.15 p.m. He then took a matatu from his house at Block No. 176, Umija Estate. He then
went to the shops where the police called him and arrested him. He produced his travel ticket
(EX.1) bearing the name . He also produced the duplicate passenger manifest to be
produced by the branch manager of the bus company he had travelled in (EX.2) showing that
seat 23 was booked by one known as who was to travel from Mombasa to Nairobi.
It is the contention of the Appellant on appeal before us that the learned trial magistrate erred
in convicting him while there was no proof <-/beyound> doubt that he was found in
possession of the alleged exhibits as required in law. Reliance was placed on the meaning of
"possession" as stated by the court of Appeal in the case of -V- Republic 1980)KCR
139. It was further urged that the learned magistrate had misdirected herself by shifting the
burden of proof to the appellant.
Whether or not the Appellant is the one named as in the bus ticket that he produced
(D.EX.1) and whose name appears in the duplicate passenger manifest (D Ex2) held by the
bus company to have been booked to travel from Mombasa to Nairobi on the material day by
the 1 p.m. bus, is not material for purposes of this case. This is so because according to the
Appellant's own testimony, that bus arrived in Nairobi at about 8.15 p.m., but it was not until
10.16 p.m. or so when the offence giving rise to the charge against him was alleged to have
been committed. At that time, he was admittedly in Nairobi within Umoja phase 11, Estate.
It is the prosecution case that they found the Appellant inside a room in Block 116 where the
drugs were recovered but he says that he was found coming from the shops heading to his
house on block 176 in the same Estate. Learned Trial Magistrate believed the two police
officers and was not persuaded by the defence testimony. These police officers had never
known the Appellant before and there is no evidence of any grudge between them and the
Appellant which could make them conduct any evidence against him so as to put him in
trouble with the law. Upon our assessment of the recorded evidence, we are satisfied that
there was good and reliable evidence to establish beyond doubt that the appellant was arrested
by the police while he was actually inside a room in block 116. His testimony that he was
arrested as he was walking from the shop, was, in our view, correctly rejected by the learned
trial magistrate.
Having found as we have stated, that the appellant was arrested inside the room, in block 116,
we are satisfied that it was inside this room that the two and a half (21/2) sacks of cannabis
sativa (bhang) were found. The conduct of the Appellant in switching off the lights and
refusing to open the door, clearly indicates, to our mind, that he was aware of the presence of
the said drugs inside the said room and that is why he sought to keep the police out. He was
alone inside the room. We are satisfied that he was found in possession of the said cannabis
sativa (bhang) within the meaning of the Dangerous Drugs Act: -V- The
Republic (1980) KLAR 139. Since he was alone in the locked room where the said drugs
were found, we believe that he had the physical control over such drugs and was in a position
to deal with the him as an owner could have done to the exclusion of strangers. Indeed he had
refused to open the door for the police officers which shows that he had the power to keep
away strangers from the house. The police only managed to gain access into the room having
broken the door using force. It does not occur to us that the learned trial magistrate had shifted
the burden of proof to the Appellant. The case of -V-R (1965) EA 555 that was cited
can therefore be easily distinguished. We uphold the conviction of the Appellant.
The sentence that was imposed was in our view well merited in view of the large quantity of
the drugs found with the Appellant. We have no basis to interfere.
In this result, we dismiss the appeal against both and sentence.
Delivered at Nairobi this 19th day of February, 1992.
judgment
These five appeals have been consolidated.
The appellants were convicted in the Court below of assault causing actual bodily harm contrary to section 251 of the Penal Code and each sentenced to 12 months imprisonment plus 3 strokes of the cane. Their appeals to this Court are against both conviction and sentence.
We agree with Learned State Counsel that there was no evidence to show that the 1st and 2nd <-_appellants><+_appellant> ( and ) participated in the commission of the offence and that their convictions were improperly entered. The appeals by the two appellants are allowed, the convictions quashed and the sentence imposed upon them set aside. Both are to be set free forthwith unless otherwise lawfully held.
Regarding the appeals of appellants numbers 3, 4 and 5 who represented all of them, argued one ground only. He submitted that the convictions were unsound because the evidence of the <-_appellants><+_appellants'> identification was not only inconsistent but also insufficient to justify conviction. He singled out the apparent self contradiction in the evidence of P.W.3 (the 2nd complainant) who at one point in his evidence had testified that he knew all the appellants but later said he did not recognize either the person who hit him or the persons forming the group that assaulted him.
Having carefully looked at the matter we can see no contradiction in the evidence of P.W.3. He did not in fact purport to identify any of his attackers; his evidence was that he knew the appellants but at the time of the attack he did not have sufficient time to identify the assailants because he was suddenly hit on the head with an object and knocked down unconscious as he was about to pass the group of people attacking the 1st complainant. Whether his drunkenness, which was later confirmed by (P.W.7), contributed to this inability to recognize the attackers is not quite clear. His evidence however has no bearing on the issue of identification and accordingly any <-/incosistency>that may exist in his testimony is not material to the issue we have to grapple with.
In his evidence the 1st complainant stated that he recognised both the 4th appellant (, the original 1st accused) and the 5th appellant (, the original 2nd accused) because although the attack took place at night, the place they emerged from was well lit by electricity light. He further said that the two appellants together with another person, who was not charged with the offence, surrounded him holding what he referred to as fighting tools. He said he was hit with an iron bar once on the head, the blow causing him to fall down unconscious.
The 3rd appellant ( - the original accused 3) is implicated in the offence by the evidence of P.W.2 who testified that on arrival at the scene of attack, which he described as inside a market, he saw and recognised all the three appellants, whose appeals we have allowed, beating the 1st complainant. On approaching them the 3rd appellant asked P.W.2 what he wanted and when P.W.2 enquired why the appellants were beating the 1st complainant, the appellant aimed a blow at P.W.2 but latter avoided it. It was P.W.2 who, after the matter had been referred to the police, took the arresting officer to the homes of the appellants because he knew them.
took issue with the evidence of the arresting officer (P.W.6) regarding the person or persons who identified the appellants to the police. P.W.6 said the identification was done by the relatives of the complainants while P.W.2's evidence was that it was he who identified the appellants. Since the incident was reported by P.W.2's father-in-law and P.W.2 was the 1st complainant's friend it does not appear unreasonable for the arresting officer to suppose that both P.W.2 and his father-in-law were the complainant's relatives. Further in considering this matter we must accept that the word relative in this part of the world has a wide meaning and we cannot properly say that we know exactly what P.W.7 meant by it particularly where the matter was not raised in cross-examination. Our views are that the matter did not constitute a material factor in the learned trial magistrate's consideration of the case. Quite clearly no miscarriage of justice was occasioned thereby.
's last point on identification related to the scene of attack. He claimed that while one witness (P.W.1) said it took place behind a lorry parked by the road side another (P.W.3) said it occurred inside a market. A careful study of the record reveals that P.W.3 merely said that three people emerged from a stationery lorry without indicating exactly where the lorry was. There is nothing to show that the lorry was by the road side or in a market and so the contradiction does not <-/infact> exist.
On our own assessment of the evidence, we have come to the same conclusion as the Learned Trial Magistrate that the three appellants were positively identified as having been amongst the people who participated in the assault of both P.W.2 and P.W.2. The medical reports show that the injuries sustained by both complainants were harm. In those circumstances the convictions were sound.
As for the sentence we do not think the term of imprisonment meted out was excessive but since the appellants are first offenders, we think the strokes awarded were excessive. We reduce them to one.
The appeals against conviction of the three appellants are dismissed but the appeals against sentence succeed to the extent that the strokes are reduce to one, for each appellant.
Dated at Nairobi this 22nd day of February, 1991.
W1C005K
Judgment
The appellant was convicted in the court below of stealing by a person employed in the public service contrary to section 280 of the Penal Code and was sentenced to 18 month imprisonment. His appeal to this court is against conviction.
The particulars of the charge against the appellant were that between 11.11.88 and 30.11.89 being a person employed in the public service as a Depot cashier in the National cereals and Produce Board (Thika) he stole cash sh. 147,555.75 the property of the Government of Kenya. The charge arose from an audit carried out on 28.11.89 at the NCPD depot at Thika where the appellant was the cashier. According to the evidence of the person who carried out the audit (P.W.1) and his assistant (P.W.3) the period covered by the audit was 7.7.89 up to 24.11.89.
But the charge, as shown above, relates to a period prior to the audit and, as far as we can see from the record, there was no explanation by the prosecution of the difference.
Be that as it may, the appellant's duties as the depot cashier were described by the prosecution witnesses as receiving and making payments as well as banking. There was however no direct evidence that he made the entries in the cash book but it seems to have been the assumption of everybody in the court below that that was the case.
It would appear that when (P.W.1) and (P.W.3) did the audit they did not concern themselves with anything else outside the cash book. They merely counted the cash and the cheques together with the outstanding <-/imprest> which they treated as the total cash in hand after comparing that with what they thought was reflected as the total cash by the cash book, came up with the figure of sh. 147,555.75 which they said was the deficit and told the appellant to explain or produce the money in 3 days. That, in our view, was wholly unfair. Considering that the period of the audit covered more than almost with hundreds if not thousands of entries, a period of 3 days was hardly sufficient for the appellant to check and verify the allegation particularly when a threat of drastic action hang over his head throughout the verification exercise.
In his evidence on this matter (P.W.1) said:-
"There are no details which are lacking because for cash matters cash at hand, cheques and <-/imprest> forms are all which need to be considered"
To which (P.W.3) added:-
"We did not know how much accused banked at the time of this report and cash survey. There could be no difference with our figures because the cash books showed banking figures."
Two conclusions can, I think, fairly be drawn from the above evidence. Firstly the auditors were only interested in the information in the cash book and they did not consider anything outside it useful or relevant. Secondly what they brought to court was not the raw material they extracted from the cash book but their inferences and conclusions about the contents of the cash book.
For instance, there was no evidence apart from what the court could gather from the exhibits, to show the opening balance on 7.7.89 which is the starting point in time and the closing balance on 24.11.89. Two questions arise from this (i) what happens if, indeed we believe was the case here, there were errors in the cash book and (2) can a court properly directing itself on the facts and the law relating to the matter convict on the basis of such evidence.
In considering these issues we must bear in mind the fact that the appellant was not convicted of making false or wrong entries in the cash book; he was convicted of theft of cash. Now where is the evidence of the existence or indeed loss of the alleged cash? The only source of that information was the cash book. That is what, we believe S.37 of the Evidence Act call entries in books of account. It provides:-
"Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but those statements shall not alone be sufficient evidence to charge any person with liability."
There must be some other evidence. The prosecution attempted to provide that other evidence by showing that the appellant had a financial problem and had borrowed money from his <-/cousine> namely sh. 40,000/- to cover shortages in his books. Unfortunately that evidence related to a period prior to the audit giving rise to the charge and there was no attempt to show the relevance of the evidence. In our view, therefore, the evidence was not useful.
There is also a general rule that in theft cases there must not be a charge relating to a general deficiency, except:-
"(i) where the separate takings are connected so as to form a continuous taking; and
(ii) where there is a duty to pay over at stated periods a total of small sums previously received".
The above rule was considered by (as he then was) in the case of . In that case the appellant was under a duty to account for the money collected daily. When a check was made, the cash at hand represented by cash and chits did not agree with the cash book. Since the balances in the cash book were verified, the Learned Judge found that it was the cash which the appellant had which was short. On those facts the appellant was found guilty because he was "the only person who could have had, and could account for, the deficiency. He did not explain and he did not produce."
The facts of the instant case are different. Firstly the evidence of the taking is not there. The entire prosecution case is based on a general deficiency. Indeed not a single prosecution witness was able to fix any period when the loss, if any, occurred. Secondly there was no evidence as to when the appellant was required either to bank or to account for the money. The accounting system appears to have been a shambles where money was being dished out to all and sundry without any caution like bananas in a market place.
But the most interesting feature of this case was not that there was any deficiency but that the figures on which the alleged deficit is based are not those of the appellant. It seems to me that when the auditors carries out the audit, they did not agree with figures entered in the cash book. They appear to have crossed out what they thought was wrong according to their calculation. There was also no direct evidence to show that it was the appellant who made postings in the cash book, despite the fact that one could expect that in a big office, such as the complainant's normally, there would be some junior clerks doing that job. Consequently, in a prosecution like this one, where it was intended to fix the appellant with criminal responsibility for the mistakes or errors in the cash book, it had to be shown satisfactorily that it was the appellant and he alone, who made the offending entries in the cash book. Such evidence could only have come from a hand writing expert. The record reveals that no such evidence was called and it follows that the case for the prosecution was not proved beyond any reasonable doubt.
Basically, we do not think the audit by (P.W.1) and (P.W.3) was satisfactory we also do not believe that the time given to the appellant to explain the matter or produce the money, was adequate. We are therefore not satisfied that on the basis of the evidence available to the learned trial magistrate, a conviction was justified.
For the above reasons we allow the appeal, quash the conviction and set aside the sentence imposed upon the appellant. We order that he be set free forthwith unless otherwise lawfully held.
Dated at Nairobi this ............. day of April 1992.
W1C006K
Judgment
The accused person is charged with RAPE c/s 140 of the penal code. That on 4.7.92 at Eastleigh section one Nairobi area had carnal knowledge of without her consent.
The facts of the case were that the complainant and the accused were engaged to be married and that they even had a pre-wedding party on 30.8.91. That at that time the complainant was living in Eastleigh and the accused in Jericho. That in September, 1991 both of them differed and they did not meet again until July, 1992. That on 4.7.92 she was in her house at 8.00a.m. when the accused went to her house. That she had woken up and her house door was open. She was alone in her nightie, seated in bed. That the accused pushed the doors open, entered and started pushing her to her bed. She started <-/screeming>. That her night dress was open in front. That she struggled with the accused and got scratches on the thighs. That he raped her as since she was <-/screeming> her neighbours came in, saw them and went away without helping. That after raping her, the accused went away. That one of her neighbours escorted her to report to the police, by name . That she gave her panty to the police on 6.7.92 when she was taken to the doctor she explained that her panty had been removed by the accused during their struggle and that she gave it to the police 2 days later.
The accused in a sworn defence did not deny having visited the complainant at her house that morning when alleged rape took place. He said he had gone to give the complainant 5,000/- he owed her. He said he had come from safari and was going home to Machakos, was so tired that he had no interest to have sex.
I considered entire evidence adduced in this case. There is o dispute that the complainant and accused were engaged to be married and had gone to the extent of having a pre-wedding party? This was on 30.8.91. Then the relationship became sour. The complainant said it broke when after the pre-wedding the accused started beating her. The accused said it broke because of when he found cigarettes in the handbag of the complainant and also discovered she took alcohol. The <-_complainants><+_complainant's> allegation was that when the relationship broke in <-/september>, 1991, she saw the accused for first time again on 4.7.92. That he entered into her house found her in <-_an><+_a> front-open night dress and knocked her onto her bed. He raped her as she . That two neighbours who came to check what was happening did not help her. She claimed both knew she was engaged to the accused to marry and had not known that the relationship had broken.
One of the alleged neighbours was P.w.2. She confirmed having seen the accused on top of the complainant on her bed on the day in question.
The accused has denied having had sex with the complainant on day in question. He said he was too tired to be interested in such an act. He further said that he had never met P.w." at <-_complainants> residence and that she never lived there.
Apart from this evidence was doctor's evidence P.w.4. He told the court that on examining the complainant 3 days after alleged incidence, he found superficial bruises on her thighs, which were 3 days old. He classified the injuries as harm. He took a vaginal swab from her genitals.
There was an analysis report produced from Government chemist Exb.3. It stated that a vaginal swab taken to them for examination had no semen and no spermatozoa present. That a pant submitted to them for examination had seminal stains of a group B secretor with few degenerated spermatozoa. It concluded by saying that the complainant had participated in a sexual activity with a person of group B secretor.
The police did not take any blood from the accused. It is therefore unknown what blood group he is. I am not able to understand why the police acted in this way by leaving out a very important aspect of the case.
From the case itself I do find that feelings between complainant and accused were not so good. It was in evidence that the accused ended up marrying another woman. That alone is reason for the complainant to feel bitter towards the accused seeing she is herself still unmarried.
The complainant was also evasive. She did not mention reason for the break of her relationship with the accused until she was cross examined on it by the defence. Even then she claimed it was because the accused started beating her without saying what the reason for the action was.
The explanation of the accused was detailed. He gave me the impression that he was both honest and open about the beginning and end of the relationship. He gave more light as to what led to the sudden break of the engagement which was reasonable and also sound. Seeing also that he settled finally in another relationship makes it even more possible that he was interested in marrying but that the complainant's conduct of smoking and drinking disappointed him.
What is before me therefore is a broken relationship where one of parties has been charged with such a serious offence.
The witness supporting the complainant's evidence did not impress the court at all, as telling the truth. Two other women were mentioned as having witnessed the incidence. They were called. Even for P.w. 2 to come, Court had to adjourn 3 times a period of 7 months for her to finally come to give evidence. This in itself gives a negative impression on the entire case.
Not to mention that the complainant in her statement did not mention P.w.2 as being one of those who witnessed the incidence. The one she mentioned did not come even after those numerous adjournments.
On considering <+_the > entire evidence I found that there was doubt in the prosecution case that <+_the > alleged incidence even took place. I was not impressed by evidence of P.w.2. The <-_complainants><+_complainant's> word was against the accused.
Also very important is fact that complainant told court that her panty was removed from her by the accused in order to force her into sex. She does not tell us what happened with it after that whether she wore it again or not. That is important for court to determine if it could have come into contact with <-_complainants> genitals after the alleged rape. That omission is serious in the prosecution case.
I am unable to tell whether semen and spermatozoa found on the pant came to be on the panty on the alleged day. That complied with fact that accused blood group is unknown makes it difficult to find whether it is possible the semen on <-_complainants><+_complainant's> panty was his.
And finally fact between complainant and the accused, <-_its><+_it's> the complainant who has a motive to feel bitter against the accused adds to more doubt on the prosecution case.
I find therefore on considering entire evidence adduced that there is doubt that the complainant was raped by the accused on day in question as alleged, I give accused benefit of the doubt and acquit him accordingly.
JUDGEMENT
In the substituted charge sheet the Accused is charged with Robbery C/S 296(I) of the Penal code, and in the alternative, Handling stolen property C/S 322(2) of the Penal code.
The prosecution case was that on the night of the 16th December, 1990 the complainant was robbed of his vehicle by persons he could not identify.
On 21.12.90 the Accused was seen driving the <-_complainant><+_complainant's> vehicle. Whose registration number had been altered. When he stopped and parked the vehicle police followed him into his house and arrested him.
The accused's sworn defence was that on the morning of his arrest he had been to the shops and as soon as returned to the house he heard people running behind him. He realized these were these were police officers. They were asking for a man who had run into the plot. They entered the house of Accused and proceeded the search. They found Shs.30,000/= belonging to him, and took him away.
The accused denied he had anything to do with the offences he is charged with. It is handling disputed that the complainant's vehicle was forcibly stolen from him on 16.12.90 at Huruma flats and the same recovered withaltered numbers on 21.12.90 near the Airforce Eastleigh.
The <-_courts><+_court's> duty will be to determine if the accused with others robbed the complainant, or dishonestly handled the vehicle in question.
P.W.1 said he did not identify any of the <-_person><+_persons> who robbed him of his car. The evidence in support of the charge of robbery is therefore the alleged possession by Accused of the stolen vehicle on 21.12.90. In this regard two police officers P.W. 2 and P.W.3 testified that they spotted Accused come by driving the vehicle in question, stop and park the same before going away. The police officers were on foot. It is not clear whether Accused had been driving towards or against them before coming to a stop. This is in my view significant and relevant to the issue of identifications. According to P.W. 2 Accused parked 10 metres away from them while P.W.3 estimated 50 metres distance. At any rate both witnesses say they pursued the accused into a house and found him trying to remove his jacket. This would mean that there was some time lapse between spotting the accused leaving the vehicle and the actual capture of the accused. The accused in a sworn statement said he lined in a flat building and that he heard people running behind him as he entered his house. Now Eastleigh is a densely populated area by day and night. This being the case there would be many people going about on an early morning. The question that nags me is whether the police officers had a good opportunity to identify their suspect before giving diase. From the evidence of P.W. 2 and P.W. 3 the accused appeared afraid and did not even lock his vehicle which means he did not linger around the car after getting out. Obviously police did not know the accused before. I am quite doubtful that there was sufficient time and opportunity for the police to pick up the accused's features in that scenario my doubts are more amplified upon considering the accused's own defence. It is quite possible that the police lost their man and mistakenly arrested the wrong man.
According to evidence on record the registration number of the <-_complainants><+_complainant's> vehicle had been crudely altered, on recovery. The <-_vehicles><+_vehicle's> colour however remained the same I am wondering whether any robber would be so <-/foolhandy> as to park the same vehicle merely a stone throw away from where it was stolen, unless the intention was to abandon the same neither would a guilty handler do such a thing. An innocent handled would most likely lock up the doors before leaving the vehicle in an open place like the one suggested by P.W. 2 and P.W. 3. Having weighed all the evidence before me, I am left with a lingering doubt as to the capability of the Accused. And endorsing the principal that it is better to acquit a guilty man than to convict an innocent one. I will acquit the accused under section 215 CPC.
Delivered and signed in open court on this 3rd day of November, 1992 in the presence of accused, court prosecutor, for Accused.
W1C007K
JUDGEMENT
The accused in counts 1, 2 and 3 is charged with the offence of stealing by a person employed in the public service C/s 280 P.C. particulars on all the 3 counts as is per the charge sheet.
P.W.1 told the court he is an accountant with price water house. He said in May 1992 officer noticed some Financial irregularities and sought help from PW 1. He said he did some <-/Auding> and discovered over 9 million shillings had been misappropriated. He then said evidence on the findings on misappropriation in the Ministry of Lives stock. He said among others was a voucher of Kshs. 50,000/= which was for purchase of drugs at Kyoso Division. In this case they found the expenditure to have been supported by a Government official receipt number 778788 of 22.8.91. He said the money was that a government receipt cannot support an expenditure. It ought to be from a supplies. He showed to the court the voucher, MFI one receipt number 778788 MFI 3, and a certified copy of a receipt for Kshs. 10/= MFI 4. He said the name on the voucher was and refers the official receipt to be number 778788 and MF I 3. He produced the report as an exhibit. In cross-examination he said the information on MFI 3 and MFI 4 was not the same. He said they doubted the expenditure of 50,000/= because a government receipt cannot be used to account for an expenditure. He said they are aware that Dawa <-/Phamcuticuals> does not sell syringes or needles. PW 2 said he is a district cashier at the DC's office Kitui. He said the government official receipts are in his safe. He said if an individual names to pay <-/imprest> they issue a receipt to the payee. The official receipt shows the account surrendered. He came across MFI 3 (a receipt) when he was shown to him by the CID officers. He did not issue MFI 3. It is for Kshs. 50,000/=. It is purported to be from Kitui station. He said when MFI 4 a receipt for 10/= was not issued by him.
In cross-examination he said he was never issued with the receipt book with the serial numbers stated in MFI 4. He said he did not certify the same. P/W 3 said he is a store keeper with the <-/vertinery> department Kitui. He issues and receives goods. He said in 1991 some things were bought by the accused from but he could not remember them one by one because he did not receive them. The accused might have taken the things directly to the Field where they had a campaign. He said he was shown a receipt from Dawa <-/Phamacuticals> and the records showed they were bought for Kyuse. He said in cross-examination that the returns showed the items were received at Kyuse.
P.W. 4 said he works with DC's office Kitui as a higher <-/clierical> officer. He said a police officer went to his office and asked for a copy of a receipt. It was MFI 4 which was a receipt for Kshs. 10/=. He said MFI 3 was stamped paid but MFI 4 was not. He said the duplicate copy of MFI 4 must be in the office. In cross-examination he never knew whether the drugs were bought or not.
PW 5 said he is <-_a><+_an> accounts clerk at Kitui DC's office. He said he did not issue MFI 2, 3 and MFI 4. He said he found some similar numbers which was not usual. In cross-examination he said the writing on the receipt looked like his but he could not say whether it was his or not. He said he issued an original receipt to . It <-/ought> to have been with (original receipt). He said the triplicate number in the office. However police did not ask for the triplicate at all. He said if he received money from he would not have written it on top of the receipt as was done in MFI3.
PW6 said he is a sales representative with Dawa <-/Phamacuticals> He said in October 1991 CID officers went to their office with a cash sale receipt of items they do not deal with. They retrieved the book the cash sale receipt came from. He certified MFI 5 as the cash sale receipt he was speaking about. He said they retrieved the book from where the cash sale receipt had come from <-/>from their archives and found all book copies had been plucked out. He <-_shows><+_showed> the book to the court. He said the book had been issued to one (salesman). He said they do not supply <-/vertinery> medicine to <-/vertinery> officers at Kitui. In the cross-examination he said by then they were not auditing the books but now they do. He said in their book all the 5 copies were missing except the one the CID officer brought. They could not be traced.
PW7 said he took from one in January 1992. He said he took over all the accountable documents but a book from where MFI 3 and 4 <-_was><+_were> removed was never handed to him. This is not withstanding the fact that the register records show it was used there. PW 8 said he is a document examiner. On 10.10.91 he received documents marked A, B and C, DI - D6, E1 - E6, F1 - F6 and the known writing marked G1 - G6. The documents were marked before court as MFI 4, 5, 3, 2 and 6, 8, 9 and 10. He did examine the writings and found no agreement. He made out a report and the same was produced before court as exhibit 11.
PW9 said one who too was a revenue clerk in the DC's office borrowed his receipt book. He used only one leaf and brought it back. He said MFI 4 was the copy of the receipt used. He said MFI 3 was shown to him by the CID officers. It <-/bers> the same number with MFI 4. In cross-examination he said he never saw remitting Kshs. 10/= but he could not remember the total remittance for the whole day.
<-/JUGDMENT>
The appellant was convicted in the court below of causing death by dangerous driving contrary to section 46 of the Traffic Act and was sentenced to 2 years imprisonment. His appeal to this court is against both the conviction and sentence.
The prosecution of the appellant arose from an accident which occurred within Thika Municipality on 11.8.88. On that day the appellant was driving his matatu from Donyo Sabuk when he hit a young girl as she attempted to cross the road near the Polysack Company.
At the point of the accident the road is straight and the evidence is that the weather was good. Further evidence by the motor vehicle examiner suggested that the appellant's matatu did not have any pre-accidental defect.
The case for the prosecution was that the accident was caused by the appellant in that he drove at a high speed as well as on the wrong side of the road and also failed to brake in time to avoid hitting the deceased. These acts and omissions were alleged by the prosecution to have constituted dangerous driving.
The two key witnesses for the prosecution were (P.W.2) and (P.W.4).
P.W.2 was the police officer who visited the scene of accident and drew the sketch plan. The sketch plan which was produced as evidence suggested that the appellant's matatu had crossed the middle of the road and was on the right side when the accident occurred. It also showed that the matatu came to rest 44.5 metres from the point of impact thereby according to P.W.2 implying high speed. All that evidence was accepted by the Learned Trial Magistrate without any thought whether it had any flaws.
A close look at the sketch plan also shows that the matatu came to a stop on its correct side of the road after supposedly hitting the deceased on the other side of the road but on being cross-examined by the appellant, who was unrepresented, P.W.2 conduced that the matatu was partly off the road meaning that the sketch did not correctly represent exactly what P.W.2 actually saw when he visited the scene. His evidence should therefore have been treated with utmost caution.
P.W.2's evidence is that of an eye witness. He was sitting on a culvert by the roadside when the accident occurred. He said that the accident occurred in the middle of the road and that the appellant was driving at a high speed. He further said that the deceased's view of the oncoming matatu might have been blocked by another matatu from which she had alighted apparently a few moments before she was struck by the appellant's matatu. That piece of evidence tends to support the appellant's defence which was that the other matatu (from which the deceased had alighted) blocked his view and that of the deceased may have contributed to the accident. The defence was rejected simply because P.W.4 in another part of his evidence had said, and that was supported by the evidence of the conductor of the other matatu, that that matatu had already left when the accident occurred. Quite obviously the evidence of P.W.4 is self contradictory because if it is true that the other matatu interfered with the deceased's view of the road it must have been there when the accident occurred or just immediately before it occurred. That contradiction was not resolved by the Learned trial Magistrate.
In convicting the appellant of causing death by dangerous driving the Learned Trial Magistrate relied on the evidence of the alleged high speed tendered by P.W.2 that the point of impact was on the appellant's wrong side of the road.
As we have already observed it was unsafe for the Learned Trial Magistrate to rely on that pieces of evidence. As regards the alleged high speed both P.W.2 and P.W.4 can hardly be said to have given any convincing evidence about the matter. To merely state that a motor vehicle was travelling at a high speed, without elaborating, does not mean anything - high speed, in comparison to what - after all what one person regards as high speed may be no more than a crawl to another. As to the breaking distance there was no expert evidence to show what speed was implied by the 44.5 meter skid marks.
From the above reasons we are not sure that a case of a for causing death by dangerous driving was proved beyond any reasonable doubt. There is however sufficient evidence to show that the appellant drove the matatu without due care and attention. We so determine because there is ample evidence to establish that the road was straight and there was nothing to indicate that the appellant attempted to stop before he hit the deceased. Even if his view of the road was blocked by the matatu which he said in his defence had dropped the deceased he could have seen the deceased in sufficient time to avoid hitting her if he had been driving carefully. In our view he was guilty of the offence of careless driving contrary to section 49 of the Traffic Act. We therefore quash the conviction under section 46 of the Act, set aside the sentence and substitute therefor a conviction under section 49 of the Act and order the appellant's immediate release, if not already released, for he has already served more than the maximum sentence allowed under section 49 of the Traffic Act.
Dated at Nairobi this 29th day of May, 1991
W1C008K
Judgment
The Appellant, (original 1st Accused), was charged in count 3 with the offence of rape contrary to section 140 of the Penal Code but after trial, the learned trial magistrate found that the facts proved supported a lesser charge of indecent assault contrary to section 144 (1) of Penal Code. The Appellant was therefore convicted of the offence of <-/indicent> assault and sentenced to serve 2 years imprisonment with hard labour and receive 2 strokes <-/corprol> punishment. He was <-/acquited> on the rest of the charges that had been <-/prefered> against him and another.
Briefly, the Prosecution case was that on the 30th of <-/september>, 1989 at about 3.p.m. the complainant, (p.w.3) who was a student as Saviour's Secondary School, Thika, left Nairobi show ground in company of (P.W.1) and (P.W.8) who were her fellow students at the same school. They alighted near the O.T.C. bus station along Race Course road in Nairobi to look for a matatu to take <-_him><+_them> back to school. They found no vehicle and decided to walk along the street heading towards Machakos Bus Station. Three men then came behind them and one of them held by the hand and started pulling her away while one of them engaged (P.W.1) and (P.W.8) in a conversation as they pleaded with the man who was taking away the complainant to leaver her. As they all walked along, under street lights, P.W.1 and P.W.8 turned to the man who was engaging them in a conversation and whom they say was the appellant to help them secure the release of the complainant from his <-/campanion>. The appellant demanded to be given some money and so gave him Sh. 50/= but instead of helping them secure the release of the complainant P.W.1 and P.W.8 testified that the Appellant went and joined the man who had captured the complainant. He now got hold of the complainant, while his companion who, initially was the one pulling her away, started throwing stones at P.W.1 and P.W.8 to keep them away. The Appellant and his companion the pulled away the complainant into a dark alley.
In her evidence, the complainant testified that after the Appellant had joined the men who had initially got hold of her, they threatened her with beatings if she screamed. She was slapped as she was lead between some houses at Majengo Estate passed a certain big wall into a dark alley. Then the men demanded to have sex with her and when she resisted she was slapped. By then a third man had joined the appellant and the man who had initially abducted her. They removed her <-/under pants> and ordered her to lie down on the grass. Two of the men held her by the legs on the ground as the three men inturn attempted to have sex with her. Even though they penetrated her <-/virgina>, none of them went full length as she was feeling a lot of pains. She was also then experiencing her monthly periods.
Continuing with her evidence, the complainant testified that from the dark alley, the Appellant and one of the said men who had sexually assaulted her took her up to the road and put her into a taxi. They joined her in that taxi and her attempts to get help from the taxi driver failed. The Appellant then hit her and ordered her to keep quiet. She was driven to a far place which she did not know. When the taxi stopped, she was taken outside the vehicle. As the Appellant took out the money to pay the taxi driver, she was held by the man who had accompanied the Appellant. Luck was on her side and she managed to free herself from the grip of the man and started running towards a near bar calling for help. By then she was holding her blood stained pants in her hand. It was about 5.a.m. She explained to the people who were at that bar what had happened to her. They were quite sympathetic and lead her behind the bar to put on her pants and by then she was bleeding a lot from her private parts. Two young men at that bar offered to help her trace the said men but she <-/prefered> to trace (P.W.1) and (P.W.8) she could not see them anywhere and the said men took her to the country station and gave sh. 40/= bus fare. She boarded a bus and went back to school.
On arrival at the school, she found that and had arrived. She then reported the incident to the school Bursar who gave them some money and told them to go to the hospital. As it was then a <-/sunday>, they did not go to the hospital until the following day. When they reported the matter to Kamukunji Police Station. After reporting the matter to the Police, the complainant was escorted to the hospital but much of the medical evidence that could have been gained from her private parts and clothes had been destroyed because she had washed them. She was also in her periods and no <-/virginal> swab could be taken.
The complainant insisted that the Appellant was one of the men who had sexually assaulted her. (P.W.1) and (P.W.8) goes further to say that the Appellant is the man whom they had given sh 50/= to help secure the release of the complainant but instead he joined the man who had initially caught the complainant.
It was this same Appellant who held the complainant while his <-/campanion> was throwing stones at and to keep at bay. Having failed to secure her release of the complainant and were themselves molested by another group of men, (P.W.8) managed to contact the police from a telephone booth. When the police Officers came to where they were with , they reported the incident regarding their missing colleague. They later went to the police station and reported the matter. Accompanied by the police <-_Officer's><+_Officers> (P.W.1) and (P.W.8) went round the places they had been to in an attempt to spot the men who had attacked them. They then saw the Appellant and pointed him out to the Police. He was arrested by SCT. (P.W.9) who took him to the police station and where he was charged.
In his defence, the Appellant testified that he lives at Ziwani Estate and assists his mother with work at Gikomba market. He stated that he was arrested by the police as he was coming from the shops.
There is no dispute that the Appellant had been sexually assaulted by three men on the material night. This was after she had been take away from her school mates (P.W.1 and P.W.8) with whom they were looking for transport to take them back to school. She was lead from the road where there were street lights up a dark alley where her captors demanded sex with her but when she resisted, she was slapped, her pants removed and she was knocked down on her back and held on the legs by two men as each of them attempted in turns to have carnal knowledge with her. From there she says that the Appellant and another took her up to the road where there were electric lights and they boarded a taxi to unknown destination where she managed to escape and ran to a near bar when the taxi stopped. Learned trial magistrate considered the evidence adduced and was <-/satified> that evidence adduced supported the offence of indecent assault since evidence of rape had been destroyed by her washing of the pants and clothes before medical examination. She was also in her monthly periods during the material time.
Learned counsel for the Appellant in his submissions before us, took issue with the Appellant's conviction on the offence of <-/indicent> assault. He was of the view that since the offence of rape could not stand, no conviction could <-_entered><+_enter> on indecent assault as it could not be regarded as a lesser offence to rape or attempted rape. Learned state counsel also thought as much.
In our view, in a case of a sexual offence where an accused is charged with the offence of rape or attempted rape, it is perfectly in order for a trial magistrate to enter a conviction on the offence of indecent assault contrary to section 144 (1) of the Penal Code if there is evidence to support the same though such offence was not charged in the alternative.
The offence of rape created by section 140 of the Penal Code carries a maximum penalty imprisonment with hard labour for life with or without corporal punishment. The same applies to the <-/offense> of attempted rape under section 141 of the penal code.
However, the felony created by section 144 /1) of the penal code in punishable by imprisonment with hard labour for 5 years with or without corporal punishment. Thus the offence of indecent assault is a minor offence as compared with the offence of rape or attempted rape.
Section 179 (2) of the Criminal Procedure Code:
Provides that -
"(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted to the minor offence although not charged with it."
A similar situation faced the court of Appeal in the case of V-Republic (Cr. Appeal 14 of 1982 50 -unreported). Here the lower court had convicted the Appellant for the offence of preparation to commit a felony under section 308(1) of the <-/Penol> Code which by then carried a minimum sentence of 10 years imprisonment. Since the Appellant was then armed with a firearm, the court of Appeal in refusing to uphold the conviction of the offence of preparation to commit a felony, substituted a conviction for the offence under section 89 (1) of the Penal code. The relevant portion of their Lordships judgment was where it was stated that:
"Thus the offence created by section 89 is a felony and since the maximum penalty is 5 years imprisonment this offence is a minor offence compared with the offence charged as preparation to commit a felony which carries a minimum sentence of 10 years imprisonment."
We therefore hold that indecent assault is a minor offence to rape or attempted rape.
Indecent assault occurs where there is an assault accompanied by utterances <-_suggestives><+_suggestive> of sexual intercourse, as also an assault by touching, for example the breasts or private parts of a female without being accompanied by utterances suggestive of sexual intercourse. The simple issue usually is whether the assault was intentional and whether it was indecent.
Utterances suggestive of sexual intercourse could change an otherwise simple assault into an <-/indicent> assault contrary to section 144 (1) of the <-/Penol> Code. The offence is complete when a female is indecently treated by touching her parts even if the intention is not sexual intercourse. The intention indecently to assault a female must however be <-/evedenced> by the assault itself. (see: -V- REPUBLIC (C.A. Cr. Appeal no. I40/1982 -un-reported).
In the instant case, we are <-/satified> that there was ample evidence to prove beyond doubt that the complainant had been indecently assaulted on the material night.
The question that now falls for determination is whether the Appellant was sufficiently identified as one of the three men who had indecently assaulted the complainant. Learned Counsel for the appellant submitted at length that circumstances were not favourable from the complainant as the indecent assault took place in a dark alley.
Learned State counsel on the other hand, was of the view that there had been proper identification of the Appellant as one of the men who had sexually assaulted the complainant on the material day.
We have considered the evidence adduced regarding identification. We do not doubt that identification in this case was perfect. The incident took place quite far from the road where there were street lights.
The circumstances of the arrest of the Appellant also <-_leaves><+_leave> a lot of uncertainty as to whether P.W.1 and P.W.8 pointed out to the police the right person who had allegedly committed the said offence. This is so because before his arrest, these witnesses and the police officers went round along the streets looking for the alleged suspects without much success <-/til> they came across the Appellant. This is a case where we consider that the police ought to have held an identical parade after the arrest of <-_a><+_an> Appellant to test whether the complainant could be able to identify him. Since he was not pointed out by the appellant. We entertain doubts regarding the identification of the Appellant. We cannot therefore uphold his conviction.
In the result, we allow this appeal, quash the conviction of the Appellant and order that he shall be set free and be released forthwith unless otherwise lawfully held.
Dated and delivered at Nairobi this 20th day of December, 1991.
W1C009K
Judgment
The appellant was convicted in the court below on one count of causing death by dangerous driving contrary to section 46 of the Traffic Act and another count of driving a motor vehicle without a driving licence contrary to section 30 (1) of the same Act and was sentenced to a total of 12 months imprisonment. He now appeals to this court against both conviction and sentence.
The particulars of the charge against the appellant alleged that on 3.10.90 at about 4 am along Julia Road Nairobi being the driver of motor vehicle registration number KJZ 917 he drove the said motor vehicle at a speed and in a manner which was dangerous for the public and other road users ....................... and thereby caused the death of a passenger in the appellant's motor vehicle.
The facts disclosed that there was a collision near the entrance of Moi Air base Eastleigh between a motor vehicle owned by the appellant and another motor vehicle which at that time was being used as a taxi. As a result of the accident a passenger in the appellant's motor vehicle died from wounds he sustained at the accident and subsequently the appellant was charged as explained above.
In order to succeed the prosecution had to establish, to the usual degree required in cases of this nature that the appellant inter alia, was the driver of the motor vehicle in question and that his driving was dangerous. In the absence of the only passenger in the appellant's car at the time of the accident (he as aforesaid having died instantly as a result thereof) the other witness who could testify on those matters was the driver of the other vehicle involved, because, he must have observed the appellant's motor vehicle as it approached and at the time of impact. He should also have been in a position to say who was driving the appellant's motor vehicle.
However, for some reason which remains unexplained the prosecution did not call that other driver. Instead they chose to rely on the evidence of a lady passenger who had been travelling from Mombasa apparently throughout the material night and would probably by reason of tiredness not be in a position to have observed the accident as clearly as the taxi driver would have done. As a result her evidence was not as clear as one would like in a charge as serious as the appellant faced. She said that the accident occurred because the appellant's motor vehicle moved on to path of the vehicle she was in. She did not however say who was driving the appellant's motor vehicle and there was not other evidence, direct of otherwise, to suggest that the appellant was the driver of the motor vehicle registration number KJZ 917.
In his defence the appellant denied having been the driver of motor vehicle registration number KJZ 917 and said that at the material time the motor vehicle in question was being driven by the deceased. Whether in so saying the appellant has in mind the famous saying that "the dead tell no tales" we shall never know and we cannot now speculate.
Be that as it may, at the close of the prosecution and defence cases and after Learned Counsel for the appellant had made his final submissions in which he pointed out that the accused's defence was that he was not driving the motor vehicle in question as well as the fact that the driver of the other vehicle (who was a vital witness) had not been called by the prosecution; the Learned Trial Magistrate made the following order:-
"Court:- On considering evidence on record I found vital evidence which is also available has been left out. That evidence is vital for the just decision in this case. It would be unfair to decide the case as it is. Therefore I invoke S.150 of Criminal Procedure Code and required prosecution to call the taxi driver and one passenger not called as witnesses."
It later emerged that the vital evidence the Learned Trial Magistrate had in mind was intended to rebut the appellant's defence regarding the person who was driving the appellant's motor vehicle at the time of the accident and also his claim that the other driver was to blame for the accident. In the event only the taxi driver was called. He was treated by the court as a prosecution witness and his evidence, which was much more detailed than that of any other prosecution witnesses, went along way to fill in several gaps hitherto existing in the prosecution case which said gaps would, in our view, have been fatal to the prosecution case.
In his petition of appeal the appellant states that the Learned Trial Magistrate erred in law in invoking section 150 of the Criminal Procedure Code to the prejudice of the appellant. The section is as follows:-
"A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:"
The section was considered in the case of v.r (1964) E.A. 672 where it was held:-
"Under s.150 of the Criminal Procedure Code it is the duty of the court inter alia to recall and re-examine any person at any stage of a trial, if his further evidence appears essential to arriving at a just decision; however, an appellate court is not thus bound to uphold as correct every recall or examination merely because the judge in the court below has said that the recall was essential to a just decision of the case;
An appellate court can inquire whether the examination of a witness under s.150, was indeed essential to a just decision, and may inquire whether the examination was or was not calculated to do injustice to the accused and if injustice was in fact done to an accused by the examination of if by examination the defence was put to an unfair disadvantage, then the examination has militated against a just decision of the case however certain the court was of the need to conduct the examination;"
Also in the case of v.R (1967) E.A. 542 the Court of Appeal held that section 151 of the Tanzania Criminal Code, which is similar to our section 150, could not be used to provide missing links in the prosecution case when no prima facie case had been established. It held:-
"s. 151 of the Criminal Procedure Code allows a court to call a witness if his evidence appears to be essential to a just decision and this is so even if it results in strengthening the prosecution case; but s.151 (permissive in terms) must be read with s. 205 (mandatory in terms) of the Criminal Procedure Code, and s.151 should not be used to empower the trial court, immediately after the prosecution has closed its case, to call a witness in order to establish the case against the accused, except possibly when the evidence is of purely formal nature;
The Appeal Court will not reverse a conviction on account of any error by the trial court unless the error has in fact occasioned a failure of justice, but the error of the trial magistrate in refusing to acquit the accused under s.205 had occasioned such a failure of justice."
In the instant case it is clear that the prosecution had not prior to the calling of the taxi driver, established that it was the appellant who was the driver of the other motor vehicle. Neither had it established who between the driver of the appellant's motor vehicle and the other driver had caused the accident. The Learned Trial Magistrate clearly recognised, that position, hence his decision to invoke the provisions of s.150 and his attempt to justify the decision by saying that vital evidence had been left out. Without that vital evidence no prima facie case had been established. There is therefore no doubt in our minds, (to quote from the judgment of Duffus JA in the case of v.R. (above)) that the case against the appellant depended on the evidence given by the taxi driver and that it was a direct result of his evidence that the <-/Leaned> Trial Magistrate convicted.
The question that arises from the above is whether the action taken by the Learned trial was justified. The answer in our view is clearly ""o"" The provisions of s.150 must be read and considered together with the other provisions of the Code and in particular s.210 which is as follows:-
"If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him."
Quite clearly, section 210 is mandatory and the accused must be acquitted if at the close of the prosecution case no prima facie case has been made out against him. In the instant case accused was not acquitted, although in our own assessment of the matter we think h should <-_has><+_have> been, but having been called to defend himself in a situation where in the first place he had no case to answer, the Learned Trial Magistrate should then not have proceeded to call another witness whom the prosecution had failed to call, to disapprove the appellant's defence. This was clearly the case where the court used the provision of s. 150 to undertake the prosecution case to the prejudice of the appellant. That occasioned a failure of justice. It is also our view that the <_/>the error committed by the Learned Trial Magistrate cannot be cured under the provisions of section 382 of the Criminal Procedure code and so the conviction was unsound.
The appeal is allowed conviction quashed and sentence set aside. The appellant is to be set free forthwith unless otherwise lawfully held.
Delivered at Nairobi this 8th day of November, 1991.
W1C010K
Judgment
These appeals have been consolidated.
The 1st Appellant, (A.I), 2nd Appellant, (A2), 3rd Appellant, (A.3), 4th Appellant, (A4), 5th Appellant, (A5) and 6th Appellant, (A6), were convicted after trial by the learned Resident Magistrate, Thika, of the offence of robbery contrary to section 296 (1) of the Penal Code and variously sentenced to imprisonment terms ranging from 3 years to 5 years together with the corporal punishment.
They now appeal to this court against their conviction and sentence.
Briefly, the prosecution case was that on the night of 11th of January, 1990 at about 3 am, while the complainant, (P.W.1) was asleep in her house, she was awakened by some noises outside her house. She then heard someone calling her and saying: "Mama Jimmy open, or else we shall break the door." She did not wait but went and opened the kitchen door. She found several men who then flashed some torch light at her face as they entered her house. She remained behind the kitchen door where one of the men held her by the waist. She had left some light inside her bedroom coming from a lamp and they called her to the bedroom. She testified that the gangsters who came to her house on the material night were about 15, but, she was able to see 5 of them whom she recognised as the 1st, 2nd, 4th, 5th, and 6th Appellants. They threatened to kill her if she did not give them some money. She told them to take sh 700/= which were in her bedroom table. They took the said money. One of them took her wrist watch while the 1st Appellant took her radio cassette. Some of the said men then went to her children's bedroom where they took sh. 5000/= which she had kept there.
The complainant's son, (P.W.2), who was then sleeping in his house not far from that of his parents, was awakened from sleep by some noise outside. He heard some people calling her mother and when he tried to open his door, he found it locked from outside. He then opened his <-/widow> and on looking outside, he saw the 1st and 2nd Appellants and he thought that they had brought his father. He testified that he was able to see them as there was very bright moonlight. He came out through the window and as he went towards their kitchen, he saw the 3rd Appellant who chased him and he ran into a coffee plantation where he hid himself before he decided to go and wake up his uncle, (P.W.5). As they were coming to his <-_parents><+_parents'> house, they heard the vehicle moving away. On reaching the house, all the gangsters were gone. The complainant then told them that she had been robbed of cash, sh 5,700/, a radio cassette and her wrist watch. The suitcase of her husband was also damaged.
On the following morning, both the complainant (P.W.1) and her son (P.W.2) went to <-/kandara> police station where they reported the incident to the police. She left in the company of P.C. (P.W.3) to visit the scene, but on reaching Kamurugu shopping centre, the complainant saw the 3rd Appellant whom she pointed out to the police officer as one of the robbers who had attacked her, and he was arrested. On the 16th of January, 1990 she again pointed out to P.C. (P.W.4), the 1st, 2nd, 4th and 5th Appellants at Kamurugu trading centre and they were arrested.
The complainant testified that during the robbery, it was the 1st Appellant who had carried away her radio cassette while the 6th Appellant had threatened to cut her with an axe demanding more money from her. He then cut her <-_husbands><+_husband's> brief case with his axe.
Both the complainant and her son further testified that they knew the 1st Appellant very well prior to the incident as he had been to their house twice in the company of the complainant's husband.
The 2nd Appellant was a watchman at Kamurugu trading Centre.
The 3rd, 4th, and 5th Appellants <-_comes><+_come> from their home area while the 6th Appellant comes from Kamurugu market.
The 3rd Appellant was not however known to the complainant prior to the incident, but she went on to say that she had known the 4th Appellant for 5 years and the 5th Appellant for 18 years.
All the <-_Appellant's><+_Appellants> denied the offence.
The 1st Appellant who stated that he was a posho Mill operator at Kamurugu trading centre, testified that the complainant's husband was his friend. He used to bring to him some girls living with him at the trading centre and the complainant was not happy about this. She therefore developed a grudge against him which made worse when she reported to the husband that he had seen her in a bar with some men. She was then beaten by her husband. It was his case that this case was brought against him simply because of the existing grudge.
The 2nd appellant testified that he is a watchman and guards the vehicle of the complainant's husband. He denied having gone to the house of the complainant on the material night or committing the offence.
The 3rd Appellant similarly denied having committed the offence saying that he was arrested for something which he had no knowledge about.
The 4th Appellant, while denying the offence, stated that there is some grudge between him an the complainant's husband over business which must have made them to involve him in this case.
The 5th Appellant, on his part, says that he was arrested on mere suspicion as he had not committed the alleged offence. He says that he lives within the neighbourhood of the complainant and he could easily have been arrested soon after the offence, but this was not so <-/til> the 14th of January, 1990.
The 6th Appellant while denying the offence, stated that the complainant's husband had a grudge against him over a girlfriend.
He stated that he was along present within the neighbourhood but was never arrested <-/til> much later when the complainant pointed him out to the police.
The various grounds of appeal before us, amounts the challenging the judgment of the court below on the following grounds:
1. There was no proper identification of the Appellants as the ones who had participated in the said robbery.
2. That the defence of the Appellants were not properly considered by the learned magistrate; and
3. That the conviction of each Appellant was against the weight of evidence adduced.
As we stated during the hearing of these appeals, we have ignored the complainant's evidence regarding her alleged identification of the appellants at the identification parade on two grounds: First, the police officer who had conducted the said identification parade was not called as a witness and no parade forms were produced in the court below;
Secondly, it was the complainant, who had herself pointed out the Appellants to the police to effect the arrest, and so, it was not therefore necessary that any identification parade be conducted or held. The learned trial magistrate therefore misdirected himself in taking into consideration what purported to have transpired at the alleged identification parade.
Turning to the evidence before the court, there is no doubt that there was a robbery in which the complainant was robbed of sh. 5,700/=, her wrist watch and a radio cassette. None of these items were recovered. During the said robbery, her <-_husbands><+_husband's> brief case (Ex.1) was also damaged. It is also not disputed that those who took part in the said robbery were many. The complainant says that they were 15 in number, but her son (P.W.2), who was scared off before reaching her house, managed to see only three of the said gangsters. There was also moonlight, but, we consider it an exaggeration on the part of P.W.2 when he stated that the moonlight was so bright to such an extent that one could even be able to pick up a needle from the ground. It was with the aid of such moonlight that the complainant's son testified that he was able to see and recognise Appellants 1,2, and 3. We shall shortly revert to this evidence. As for his mother, the complainant, she says that she was able to see and recognise the appellants because of torch lights which they were flashing during the robbery in her house and also because of some light from the lamp that was inside her bedroom.
As we have stated, when the gangsters went to the home of the complainant and called her out, she did not hesitate to open the door. The complainant's son also heard them calling his mother. His immediate reaction was to go out and find out who were calling. He tried to open his door and found it locked from outside. He then opened the <-/widow> and hid himself. It was from where he was that he says that he was able to see the 1st and 2nd Appellant whom he thought had brought his father.
When he came out of hidding to go towards them, he was chased by the 3rd Appellant and he ran into coffee plantation where he hid before going to call his uncle.
Given the fact that these men entered the house as soon as the complainant opened the door and the 1st Appellant is said to have picked the radio cassette, we doubt whether two men whom the <-_complainants><+_complainant's> son saw were really the 1st and 2nd Appellant.
Moreover, we do not know how far he was when he allegedly saw these men. The possibility of a mistake on his part cannot really be excluded. The same applies to the man who he says had chased him with a panga: R-V- TURNBULL & OTHERS (1976) 3 ALL ER 549.
As for the complainant, she was rudely woken up from sleep by people whom she does not say, she was familiar with the voices. When she opened the door, the first thing that these people did, was to flash torch light on her face which obviously to that effect of temporarily blinding her. Then to her surprise, these people turned out to be so many and on her own evidence, they were 15 in number.
The only source of light inside her house was that from her lamp inside her bedroom and from the torches which the said gangsters were flashing around in the house. She did not go to her bedroom immediately but remained behind the kitchen door where one of the men held her by her waist. Some of the gangsters went <-/a head> into the bedroom from where they called her and threatened her to produce the money or be killed. It is this confused circumstances with so many people walking about in her house that the complainant says that she was able to see and recognise 5 of the said men who she later pointed out to the police and were arrested.
Apart from the 1st and 2nd Appellants whom the complainant and the son says that they saw and recognised on the material night, the evidence of the rest of the Appellants is based on the evidence of the testimony of a single witness. The complainant did not say anything about the 3rd Appellant just as her son did not say anything about ever seeing the 4th, 5th, and 6th Appellants on the material night. These Appellants were therefore convicted on the evidence of a single identifying witness which the learned trial magistrate thought was proper because the case for the prosecution was based on <-/recognation>. He said:
"The evidence of identification here is of recognition not identification."
We accept that recognition and identification are quite different concepts but this alone cannot absolve a trial court from the need to warn himself of the danger of basing a conviction on the evidence of identification by a single witness. It is possible for a witness to believe quite genuinely that he had been attacked by someone he knew and yet still be mistaken. RORIA -V-R (1976) E.A.583 and a number of witness could all be mistaken: R-V TURNBULL AND OTHERS (1976) 3ALL ER 549. So the possibility of error is still there whether it be in this case of <-/recognation> or identification.
In this particular case, the court below did not go on record as warning itself of the danger of convicting on the uncorroborated evidence of a single witness in circumstances unfavourable to accurate identification. The following passage from the case V-R- (1953) 20 EACA.166, at P.168 is quite apt where the court of Appeal for Eastern Africa said:
"The learned Judge was impressed by the demeanour of in the witness box and thought him an honest witness.
We accept this assessment unhesitatingly but on an identification issue a witness may be honest yet mistaken, and make errorness assumptions particularly if he believes that what he thinks is likely to be true ....... subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness respectively identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or Jury can reasonably <-_concluded><+_conclude> that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error."
Perhaps the more relevant case is that of -V-R (Kisumu cr.Appeal No. 20 of 1989) (unreported) where the Appellant was convicted of robbery based on the evidence of the two <-_complainant's><+_complainants> who testified that they both recognised the appellant among the robbers who attacked and robbed them. The court of Appeal had this to say:
"What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the Appellant. Evidence of visual identification in criminal cases can bring about miscarriage of Justice and it is of vital importance that such evidence is examined carefully to minimise this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of identification.
The way to approach the evidence of visual identification was <-/succintly> stated by <-/lord> , in the well known case of R-V-Turbull (1976) 3 ALL ER 549 at page 552 where he said:
"Recognition may be more reliable <-_then><+_than> identification of strangers; but even when the witness is purporting to recognise someone he knows, the Jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."
As we have endeavoured to show, the question of identification or recognition was the important point at the trial. The evidence of identification of all the appellants by the complainant (P.W.1) and her son (P.W.2), in the present case, is, to say the least, most unsatisfactory. We may further observe that the learned magistrate who convicted the appellants was not the same magistrate who had received the testimony of the complainant and her son. The said magistrate did not therefore have the advantage of assessing the demeanour of the witnesses to competently assess their credibility.
We believe therefore that in such circumstances, we are entitled to make our own assessment of the recorded evidence and draw our own conclusion. Having done so in light of what was set out before us, we consider that it was a substantial error to convict the appellants without excluding altogether the possibility of mistake on the part of the complainant and her son.
For reasons given, we allow these appeals, quash the conviction of each of the appellants and set aside the sentences passed in each of them. We order that each of the appellants shall be set free and be released forthwith unless otherwise lawfully held.
Delivered at Nairobi this 13th day of February, 1992.