Reppublic v Irungu (Criminal Case 465 of 2014) [2015] KEMC 4 (KLR)

4. While PW2, Benard Mathenge, was still looking for assistance from neighbours so as to get into the shop, the complainant herein, PW1, Lucy Njoki Kamau, emerged from the shop while running and informed him that there was a thief inside the shop. 5. The thief, the defendant herein, suddenly also emerged from the shop while running away. PW2, Benard Mathenge, alongside other members of the public gave chase and were able to arrest him approximately 70 m away from the shop. They brought him back to the scene ( the shop) where he was left at the mercy of a mob that had gathered there. 6. PW1, Lucy Njoki Kamau, was able to snatch the knife from the defendant. She handed over the knife to PW2, Benard Mathenge, who hid it from the members of the public so as to prevent it from being used to harm the defendant. 7. Just immediately before the robbery, the defendant herein had been seen by PW3, Ayub Gachoki Kinyua, who knew him before while at the scene. PW3, Ayub Gachoki Kinyua, has a store next to the complainant's shop. PW3, Ayub Gachoki Kinyua, confirmed that he knew the defendant herein as an employee of his landlord to his residence. He recognised him using lights and also by his voice because they talked for about a minute before he left him while standing at a nearby veranda. 8. The arrest of the defendant herein was immediately reported to PW5, No. 37XXXX CPL. Peter Wafula, who was then on duty at Mairo-inya Police Station. The report was made to him by some members of the public. He immediately rushed to the scene where he found the defendant herein while lying down and while with the members of the public who were assaulting him. He restrained the mob and then also received the complainant herein, PW1, Lucy Njoki Kamau. He took both the defendant and complainant to Nyahururu District hospital for treatment. 9. The defendant was admitted at the hospital, treated and later discharged on 24/02/2014 vide the discharge summary, PEXH. No. 3. The complainant PW1, Lucy Njoki Kamau, was however treated on the same night as an outpatient. PW4, Cecilia Wanjiku Njoroge, the in charge of clinical services at the hospital confirmed that she later examined her and confirmed that she had sustained some soft tissue injuries on both lips and neck. She produced the Medical Examination Report (P3 Form) as PEXH. No. 1. 10. PW5, No. 37XXXX CPL. Peter Wafula, also produced the knife that was recovered herein as PEXH. No. 2. 11. The defendant was called upon to make his defence. He stated that he was mistakenly arrested and assaulted by a crowd of rowdy people, some of whom appeared drunk, while heading back home after escorting his girlfriend. That that was despite his plea to them that he was not a thief. That he became unconscious in the process and came to the following day while at the hospital. He later got better and by 23.02.2014, he realised that he was under arrest. He was subsequently released and taken to Mairoinya police station from where he was later charged with the ofience herein. He denied committing he ofience. That he has never committed any such ofience. 12. There were written submissions tendered by the defendant at the close of hearing. He mainly submitted on the issue of identification. That the complainant did not in any way identify her attacker/ s. That the other witnesses did not see the defendant herein commit the ofience. That no evidence of the physical features were given to explain the identification. That the identification evidence herein is just but an afterthought. That in the circumstances, the prosecution has not proved a case against the defendant to the required standard. https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/4/eng@2015-01-06 2

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13. As correctly submitted by the defendant, the main issue herein is identification. It was basically identification by a single witness i.e. the complainant. The identification evidence has however been suficiently corroborated by that of PW2 and PW3. It has also been strengthened by the length of time that the complainant was with the defendant. 14. PW3 confirmed that he knew the defendant herein before. He placed him at the scene at the time immediately before the robbery. PW2, on the other had was very honest that he did not know the defendant herein before; but nevertheless, saw him emerge from the complainant's shop while running away soon after the robbery. His evidence is further consistent that he gave chase with the assistance of other members of the public and were able to arrest him. Contrary to the defendant's submissions, I find no contradictions on the dates of the identifications. All were on 21.02.2014. 15. On the defendant's defence of mistaken identity, the complainant and PW2, were both firm and consistent that it is the defendant herein who committed the robbery attack on the complainant, emerged from the complainant's shop while running away after the robbery; and was arrested by amongst others, PW2, ' ...when you fell down. Another young man from boda boda fell you down and I picked (you) from down'.1 16. I have gone through the evidence herein, and also considered the defendant statement in defence, and I do not find any element of mistaken identity as alleged. His statement in defence has therefore been suficiently displaced by the identification/ recognition evidence herein which is well corroborated. The complainant used the light from the torch. She was with the defendant for a reasonable period of time. He evidence has also been corroborated by PW2's and PW3's identification and recognition evidence which makes me believe that the defendant herein was indeed the robber. As the defendant was immediately before and after the robbery seen by PW3 and PW2, respectively, while at the scene. He was arrested immediately after the robbery incident. This is therefore not a case of mistaken identity. 17. He used personal violence during the attack. The complainant was wounded by the defendant herein and that is suficient to disclose the serious ofience of robbery with violence. 18. In the course of the robbery, he stole Kshs. 400/= from the complainant. It was also proved that he was armed with a dangerous and ofiensive weapon, a knife, PEXH. No.2. The provisions of section 116 of the Evidence Act that was quoted by the defendant in his written submissions are not applicable herein. The section provides as follows: Disproving ownership: When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who afirms that he is not the owner. 19. The issue of ownership of the knife herein is not material herein. PW1, confirmed that the defendant was in possession and therefore armed with the knife. Being in possession of, and not ownership of, is what is material in proving one of the ingredients of the ofience of Robbery with Violence. The other ingredients are '...or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person...'2. 20. It has been suficiently proved that the defendant herein was in possession of a dangerous weapon, and at the time of the robbery wounded the complainant herein. 1 See PW2's testimony in cross-examination at pg. 19 of the handwritten proceedings. 2 Section 296(2) of the Penal Code https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/4/eng@2015-01-06 3

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21. All the essential ingredients of the ofience of Robbery with Violence provided for in section 296(2) of the Penal Code have thus been proved to the required standard of beyond reasonable doubt. I do therefore find the defendant herein guilty and consequently do hereby convict him pursuant to the provisions of section 215 of the Criminal Procedure Code of the ofience of Robbery with Violence c/s 296(2) of the Penal Code. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 06TH DAY OF JANUARY, 2015 ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Kangethe Prosecutor: CIP Masinde Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/4/eng@2015-01-06 4

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