James Muriuki Kamau v Republic

learned that those who attacked her had carried away some of her things from her house and three suspects had been arrested, one of them her former employee. Michael Mumenya Nyamu was P.W.1’s son who was with her in the house at the time of the attack. His age was not revealed and gave evidence as P.W.2 on oath the trial magistrate recording that the witness could do so. The robbers do not appear to have been bothered by this boy’s presence in the house. His evidence is like that of his mother concerning the incident in the house. But unlike his mother, this witness saw the items mentioned in the charge being taken from his parent’s house by the robbers. He did not identify any of the robbers including Accused two said to have been his parent’s employee previously and could not therefore pick anybody on the identification parade although the police, according to his evidence, had told him to go and pick Accused two. P.W.3, Purity Mwangi Maina, told the court she was also in the house of P.W.1 at the time of the attack although neither P.W.1 nor P.W.2 had mentioned P.W.3 and her presence. She said she was also in the kitchen. She heard P.W.1 screaming in the sitting room and on going to check she was accosted by two men who made her lie down where P.W.1 was lying. She did not refer to the presence of P.W.2 and the fact that P.W.1 had been beaten and was unconscious. Like P.W.2 she saw the items mentioned in the charge being taken by the attackers. Using electricity light which was in the house, P.W.3 was able to identify the person who had hurt her. She picked him at the identification parade. He was the Second Appellant and P.W.3 told the court that she was able to identify him because he hurt her, held her and she noted his face and appearance. But she said some members of the parade were tall others short, some dark others light. That contradicted what P.W.12 told the court. After being injured, she was treated at Tumutumu hospital and discharged. Ephraim Nyamu Weru was the husband of P.W.1. He gave evidence as P.W.4 stating that he was away when the robbers attacked. He returned home to find the police and members of the public present. He was informed of the robbery and of the fact that his wife had been injured and taken to Tumutumu hospital unconscious. At home he noticed the items stolen. He said that on 26th February, 2001 he was called to Karatina Police Station where he was shown stolen and recovered items from his house and he identified them. He added that he was present when accused persons were arrested including Accused two who had been their employee and that he was also present when the exhibits were recovered. He went on to say what was recovered from each Appellant. The prosecutor ended the evidence of this witness in Chief without making him say how and where he was present when accused persons were arrested in his presence and exhibits recovered in his evidence. His earlier statement was that he was called to Karatina Police Station where he was shown recovered items. How did he again come to see them being recovered? It is during cross-examination that this witness tried to show how he was present. The prosecutor ought to have done better than this if he knew the essential ingredients he was supposed to prove in this case. What came out was that P.W.4’s evidence during cross-examination was at variance with his evidence in chief and we cannot know which part of his evidence to follow. Noted is also the date of handling stolen goods in the handling counts. The date is 18th February, 2001 yet P.W.4’s date is 26th February 2001. When it comes to the evidence of P.W.5 Justus Maina Kengi and P.W.6 James Muthee Munga, both are talking about one incident, sale of the T.V. to P.W.6 by the First Appellant. But their evidence was left with some inconsistencies. Each one of them was at his place of work. P.W.5 at Mt. Kenya Butchery. P.W.6 at Quality Butchery Karatina. It is not clarified whether both butcheries were in Karatina Town. But even if they were, it was not clarified whether they were together and how P.W.5 in his butchery knew what P.W.6 was doing in his butchery concerning the T.V.

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P.W.5 referred to P.W.6 as his colleague without clarification how the two were colleagues. From their evidence, the two appear to have been together from the beginning to the end. But P.W.5 said that the First Appellant wanted to sell the T.V. to bail out a relative who was in remand, while P.W.6 told the Court that the First Appellant wanted to sell the T.V. because someone was sick. P.W.6 said the First Appellant went to him on 12th February 2001 and that is the date P.W.5 also mentioned. But in the end P.W.6 said that the police who recovered the T.V. went to him at 2.00 a.m. on 8th February 2001. He said it was the First Appellant who took the Police to him. P.W.5 first said that the First Appellant went to them with the T.V. But at the end of his evidence in chief, P.W.5 said that the First Appellant went and brought the T.V. The prosecutor, Inspector Muriuki, ought to have seen all those discrepancies to remove or avoid them for that was one of the reasons why he was doing that job. He failed. In any case, it seems to us that what P.W.5 and P.W.6 were saying in the court was that the First Appellant took the T.V. to both of them and eventually sold the T.V. to P.W.6 for Sh.3000/= with P.W.5 acting as a witness and that the First Appellant gave them a receipt with the name Fredrick Maina Wachira when they knew him as a radio repairer James Muriuki Kamau whose name is printed on his shop. They recorded an agreement at the back of that receipt and signed it retaining the T.V. until the police recovered the T.V. when the police went with the First Appellant under arrest. Jesse Ndegwa Githaiga, a mechanic owning a garage gave evidence as P.W.7. He told the Court that his motor vehicle Reg. No. KQT 608 was hired by the First Appellant to a place called Kanyama where the First Appellant said his house was. Apparently the motor vehicle which had a battery problem did not reach the house but the First Appellant whom P.W.7 knew before that date and the Second Appellant whom P.W. 7 had not known emerged jointly carrying a gas cylinder in a sack. They put the cylinder in the motor vehicle’s boot and P.W.7 drove the vehicle with the two men and the cylinder on board, back to his garage in Karatina town to repair the cylinder. There was a part which was spoilt. The battery was also down. P.W.7 took it to Karatina. The gas cylinder was repaired and collected the following day by the First Appellant assisted by P.W.8, Douglas Gichoki Mweiga The manner in which the gas cylinder was handled from P.W.7’s garage back to the First Appellant is not clear as suspicion seems to have been in the air. Police Constable Joseph Ndirangu, P.W.10, was the arresting officer. Acting on information from an informer and in company of other police officers, they went to Karatina Town and arrested P.W.7 as a taxi driver who had allegedly carried the stolen items. P.W.7 led them to the Second Appellant. The Second Appellant was arrested and a radio, a rain coat similar to those worn by police, a toy pistol and a plain receipt recovered. That was on 18th February 2001. The Second Appellant led the Police to the house of the First Appellant who was found and arrested and a gas cylinder and a sewing machine head recovered. The Appellants were taken to Karatina Police Station. The Second Appellant led the Police to the home of Accused two who was also arrested before all the suspects were taken to the Police Station. On 19th February 2001 the First Appellant led the Police to a butchery where the First Appellant said he had sold one T.V. set. The said T. V. set was recovered and the receipt at the back of which there was the sale agreement bearing names Fredrick Maina

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Wachira and James Kanake and the purchase price of Shs3000/=. In their defence, each Appellant denied that he was one of the robbers. They mostly dwelt on their respective arrests. The First Appellant told the court that he did not rob anyone. He said that on 16th February 2001 he was in his shop where he used to sell clothes when Accused two went to the shop, selected some clothes he wanted to buy but said he did not have cash and would sell a gas cylinder to get the money. He asked the First Appellant to keep the clothes for him and that was done. The following day Accused two took the gas cylinder to the First Appellant’s shop saying he had failed to find a buyer. The evidence is not clear although the First Appellant made his defence on oath. It would appear that the First Appellant was still having the clothes claimed to have been selected by Accused two and was also having the gas cylinder when the Police arrested him and recovered the gas cylinder. We note that during the cross-examination of P.W.7, while it was the Second Appellant’s case that he was just assisting the First Appellant to carry the gas cylinder, it was the First Appellant’s case that he had the gas cylinder because he had attached it for a debt. In his unsworn defence therefore the Second Appellant did not say anything about the gas cylinder. He talked about his arrest by the Police at his home and taken to the Police Station and how the Police treated him. Generally his defence was that the house in which he was found when arrested, though in his home, did not belong to him. The learned trial magistrate recorded the defence of every accused person. But before us in these appeals, each Appellant has told us that what he said in his defence was not recorded. The correct position is that the defence was recorded but when it was considered in the judgment, the learned magistrate rejected the defence. Different name in the receipt issued to P.W.6 when he bought the T.V., the defence, the fact that recoveries and arrests were effected seven days after the robbery – whether in the circumstances there could be recent possession, were all considered by the trial magistrate. The questioning of the evidence of P.W.5, P.W.6 and P.W.7 by the Appellants was not done before the trial magistrate. Those witnesses were cross-examined by the Appellants who never challenged the witnesses to show that they were not credible witnesses. As we indicated at the beginning, coherence or consistency lacked in some respects of the evidence adduced. It now emerges that the problem was not only on the side of the prosecution. It was also on the side of the Appellants. In the circumstances therefore and doing our best, we come to the conclusion that there was sufficient evidence to sustain conviction of the Appellants on the following grounds:Firstly, robbery as alleged in the charge was proved. P.W.1 and P.W.3 were injured and the former lost consciousness and spent several days admitted in hospitals for treatment. During the incident, the attackers were more than one, armed with offensive weapons and robbed the items mentioned in the main charge. Secondly, there was a Charge and Cautionary Statement recorded from Accused two. That statement incriminated Accused two and the Second Appellant in the robbery. The statement was admitted in the evidence without objection. Accused two died after conviction and sentence. The statement remains against the Second Appellant although it is evidence of the weakest nature against him. But the Second Appellant was identified by P.W.3 at the scene of the robbery and P.W.3 was able later to pick him at the police identification parade.

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Thirdly, the evidence of P.W.5 and P.W.6 relating to sale of a T.V. by the First Appellant and evidence of P.W.7 and P.W.8 relating to hiring of his motor vehicle, which transported the gas cylinder which he repaired and was returned to the First Appellant, the hirer of P.W.7’s motor vehicle. Fourthly, evidence of recoveries by P.W.10 the arresting officer. From the First Appellant were recovered the gas cylinder, a sewing machine head and the T.V. he had sold to P.W.6. From the Second Appellant were recovered a radio cassette Phillips SN700503. Fifthly, identification of recovered exhibits by P.W.1, P.W.2, P.W.3 and P.W.4. From the totality of all that evidence, we are satisfied that the learned trial magistrate was justified in rejecting the defence advanced by the Appellants. Their conviction was proper and we find no good reason to interfere with any of the sentences. Accordingly, we do hereby dismiss each of these two appeals. Dated this 18th day of November 2004. J. M. KHAMONI JUDGE H. M. OKWENGU JUDGE

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