Gregory Muthini Mwau v Republic & 1 other

(1) of the Penal Code. Particulars thereof were that Charles Kyalo Mutungi on 10 th September, 2011 at Katangi location along Machakos-Kitui road in Yatta District within Machakos county was found armed with dangerous or offensive weapon namely a knife and jungle jacket in circumstances that indicate that he was so armed with the intent to commit a felony namely robbery. 3. The prosecution called a total of nine witnesses. Chief Inspector Gabriel Mitei (PW1) was travelling aboard the vehicle which was his friend’s. Passed Katangi Shopping Centre, four men wearing police uniform stopped them. One of the men had an official traffic police uniform which had a reflector jacket while the rest had long black coats. The one in a reflector jacket interrogated them asking where they were going to. suddenly, the man adorning the reflector jacket grabbed the ignition key and produced something that appeared to be a pistol. Having been armed, PW1 fired at the man standing on his side. He fell and the others took to their heels. On returning to the vehicle, the man he shot had escaped. PW1 made a report to Katangi Police Post. At the time they had been stopped by the four men, a Canter registration number KAY 547X (‘the Canter’) was parked off the road. Upon making a report, the police visited the scene. At the scene they found members of the public. They searched the nearby bushes but found no one. On opening the rear of the Canter, they found three men. It emerged that one of them was a robber who was holding them hostage. The three were handed over to the police. Four days later, he was called by Masii DCIO and shown a suspect who had a cut thumb on the right hand, wounded chick and swollen neck to the right. PW1 stated that he was able to identify the man who had a reflector jacket since he was illuminated by the Canter’s headlights but could not identify the man who was by his side. He stated that he shot the man on the cheek and that the man found in the Canter was Charles Kyalo Mutungi who he identified using the torch that had been dropped by the man who had a pistol. 4. Police Constable Joseph Chesaro (PW2) received the report from PW1 on 10 th September, 2011 at about 10.25 p.m. He accompanied him to the scene where they found a lorry parked off the road. They opened its rear having been attracted by banging sounds they heard from it. On opening, they found 3 men. They established that there was a turn boy and a driver and Charles Kyalo who had held them hostage. 5. Japheth Mutinda Sawili (PW3) who is a driver at DC’s office Matinyani stated that he was on the material day driving PW1 home. On reaching Katangi market he saw the Canter which had hazard lights on. He slowed down. He was flagged down by men in police reflector jacket. He asked for his driving license. As he was getting the driving license, one of the men put a pistol on his neck. He suddenly heard a gunshot then saw PW1 outside the vehicle. He got out of the vehicle and saw one of the men lying down next to the rear wheel. He moved the vehicle to move away from the man’s feet and on getting out, the men had taken off. A report was made by PW1 to Katangi Police Post and police officers accompanied them to the scene. At the scene, the rear of the Canter was opened and 3 men were found inside. He however said that he was unable to identify the robbers. 6. Corporal Michael Mboya of Athi River Police Station (PW4) received a call on 13 th September, 2011 from Chief Inspector of Police Njiiri instructing him to visit Athi River medical clinic where there was a suspect with gunshot wounds. He in company of other officers went to the facility but found the said suspect had left. Gregory Muthini Mwau later came back and was referred to Shalom Hospital. They trailed him. On interrogation, he alleged to have been assaulted by thugs. Upon conducting a search to his house, an x-ray film was found which showed a bullet lodged in his head. He however alleged that the house was his brother’s. 7. PC Masibo (PW5) recounted that information was on 13th September, 2011 received from OCS of a person with bullet wounds at Athi River Medical Centre. He in company of other officers went to the facility where they saw Gregory who they trailed to a shanty house. He was said to have a swollen neck and face and had a bandage. On being interrogated, he stated that he had been injured near Club Kannila. On conducting a search they recovered an X ray film and his identity card (P. Exhibit 5 and 8 respectively. 8. Lawrence Kinyua Muthuri who is a government analyst at Government Chemist Nairobi (PW6)

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presented a report dated 27th March, 2013. He stated that the laboratory received A1- blood sample of Gregory Muthini Mwau, A2- greyish pebbles indicated to be collected from the scene, A3- blood sample of Charles Kyalo, A4- a knife with a maroon handle and A5- a green brown and cream jungle jacket. Upon analysis it was found that the pebbles, knife and jacket were stained with human blood. DNA samples were generated and found that the blood stains on the pebbles marched DNA profile of Gregory while the DNA generated from the blood sample on the knife marched the DNA profile of Charles Kyalo. 9. Chief Inspector Hassan Maringo (PW7) who is a forensic firearms examiner stated that he examined a Taurus revolver serial no. TK69777 which he received from PC Cheruiyot Ruto of CID Machakos. It emerged from his examination that it had burnt propellant powder on its barrel, an indication that it had been fired. The lapse of time could however not be ascertained. 10. PC Cheruiyot Kilele Ruto (PW8) testified that upon receiving the report on the incident, he visited the scene. There he established that there was blood on the tarmac and off the road. He then found information that there was a suspect on the run with bullet wounds. He later received information there was a suspect at Athi River. The suspect was arrested. He took him to Machakos General Hospital where an x- ray was conducted. The x ray revealed that he had a foreign body lodged in the neck. He duly took blood samples from the scene and from the appellants. He also took the Jacket and knife for examination. 11. Dr. David Musyoka (PW9) confirmed that he ordered for an x ray to be done on Gregory Muthini. That the x ray revealed that he had a foreign body. He later ordered for a CT-scan to be done but Gregory refused to have the same and surgery to be performed on him. 12. The appellants were put on their defence where they both gave sworn statements. Charles Kyalo Mutungi (DW1) testified that he on the material day after work and his errands boarded the Canter to take him home. On reaching Katangi area, they were stopped by the police and ordered to alight. He was then arrested after being frisked. He stated that he was cut on the hand by a sharp object when he was pushed to the vehicle. That they were kept in the vehicle for about 1 and ½ hours. The police later returned with other police officers who took them to the police station. 13. Gregory Muthini Mwani (DW2) testified that on 13 th September, 2011 he was at Makadara stage when a personal vehicle pulled off the road and two men alighted. Each of them had a pistol. They arrested him and bundled him into a car. Inside the car, two men ordered for beer and gave him a bottle of beer for two hours. The vehicle was driven to Portland area where he was asked to alight and raise his hands. He was asked to produce people whose names were written on a piece of paper. He was beaten up injured on the head and lost consciousness. He denied having a bullet lodged in his head. 14. The trial magistrate considered the case and acquitted Charles Kyalo of the 1 st count and convicted him of the 2nd count. Gregory Muthini was on the other hand found guilty as charged and convicted. Both were sentenced to 6 years imprisonment. 15. Aggrieved by the conviction and sentence, Gregory lodged Machakos High Court Criminal Appeal No. 166 of 2015. The grounds can be summarized as follows: a) That the learned magistrate erred in law and fact by convicting him when there was no positive identification. b) That the learned magistrate erred in law and fact in convicting him on uncorroborated evidence. c) That the learned magistrate erred in convicting him on the basis of the pebbles whose recovery was tainted with doubt. d) That the learned trial magistrate erred in convicting him on the basis of a defective charge.

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e) That section 107 of the Evidence Act and section 169 (1) of the Criminal Procedure Code were not complied with. 16. In his submissions, Gregory Muthini contended that the complainants PW1 and PW3 did not give a physical description of their assailants in the first instance while reporting to the police and argued that dock identification was worthless in law. He cited inter alia Nairobi Court of Appeal Criminal Appeal No. 136 of 1983, Juma Ngonda v. Republic and Nyeri Court of Appeal Criminal Appeal No. 24 of 2002, Henry Kimathi v. Republic. The court in the said cases highlighted the benefit of giving a description of an assailant in the first instance. 17. He contended that the evidence tendered by PW1 and PW3 were inconsistent since they gave different timings as to when the incidence occurred. It was contended that while PW1 stated that the incidence occurred at 10.30 pm PW3 talked of 10.00 pm. He further contended that PW1’s evidence was inconsistent with that of PW4. That while PW1 stated that he shot at one of the robbers on the chick, the x ray produced by PW4 revealed that a bullet had been lodged on the head. 18. He contended that it was not clear where the pebbles were recovered from. That PW6 stated that the pebbles were recovered from the laboratory thereby it could not be ascertained that the pebbles were recovered from the scene. That PW8 did not indicate that he collected the pebbles. 19. He contested that he was taken to two different police stations, Athi River and Masii and did not know what was indicated in the occurrence book. That the charge sheet was said to have been amended on 3 rd April, 2013 but instead was amended on 24th July, 2013. That PW4 and PW5 gave their testimonies on charge sheets which were not brought before court. He contended that he gave sworn evidence which the trial court failed to consider. That having given a defence of alibi, the burden of proof lay on the prosecution. 20. The respondent opposed the appeal. It was the respondent’s submission that the essential ingredients provided for under section 297 (2) of the Penal Code had been proved. That the government analyst proved that Gregory was at the scene since his blood samples were found on the pebbles. That PW9 further confirmed that he had a foreign metallic object in his neck which he refused to have it removed. It was submitted that the defence by Gregory was an afterthought. 21. Charles Kyalo on the other hand after lodging Machakos High Court Criminal Appeal No. 180 of 2014 filed Machakos High Court Miscellaneous Application No. 148 of 2015 seeking a review of the sentence. He expressed his remorse of the offence and prayed for a lesser sentence. 22. On Gregory Muthini’s appeal, it emerged from the record that he first went for treatment at a medical center where the Medical Officer raised the police since he had a bullet wound. He was traced to Shalom Hospital and to his house where an x ray was recovered. The x- ray was of a head which had a bullet. He denied that the x-ray was his. The Doctor ordered for another x ray to be conducted on him. The same position was found even in the second x ray. When the Doctor recommended a CT scan and surgery to remove the bullet, Gregory refused. Further, the pebbles whose recovery he contends were examined and his DNA profile were found on it. While Gregory contends that the recovery of the pebbles was dubious, it was clear from the evidence of PW8 that he on the strength of a court order collected pebbles from the scene. It was after the collection of the pebbles that blood samples were taken from Gregory. It is worth noting that the refusal of Gregory to have a CT scan and surgery done to remove the bullet lodged on his head raised suspicion upon himself. I must at this point state that the argument that there is a contradiction on where exactly the metallic object is said to be lodged is immaterial. This is for the reason that there are x ray films on record and that the neck is part of the head. This contradiction and the contradiction as to the time as stated by PW1 and PW3 does not in any way weaken the evidence on record. They are minor contradictions that do not affect the material facts. Further, Gregory did not offer any explanation of how he got to have the metallic object lodged in his head. In the circumstances, I find that Gregory’s defence did not shake the strength of the prosecution case or rather bring forth any doubt. In the end, I find and hold that appeal No. 166 of 2015 has no merit and is hereby dismissed. The upshot is that the trial magistrate’s conviction and sentence is upheld.

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23. On the issue of review of Charles Kyalo’s sentence, it is noted that he was arrested during the commission of an attempted robbery while in the company of the other Appellant. I find the sentence meted out by the trial court to be reasonable and ought not to be disturbed. Consequently, his application for review of sentence is rejected. He is ordered to serve the sentence as ordered by the trial court. It is so ordered. Dated, signed and delivered at Machakos this 8th day of November, 2017. D. K. KEMEI JUDGE In the Presence of: Gregory Muthini Mwau – appellant Charles Kyalo Mutungi – Appellant Mrs Saoli for Respondent C/A: Kituva

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