Robert Muchungim’naituli & another v Republic [2020] eKLR Case Summary

Court: High Court of Kenya at Meru

Category: Criminal

Judge(s): D.S. Majanja J.

Judgment Date: August 20, 2020

Country: Kenya

Document Type: PDF

Number of Pages: 3

 Case Summary    Full Judgment     

Summary

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IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 73 OF 2019
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 74 OF 2019
CORAM: D.S. MAJANJA J.
BETWEEN
ROBERT MUCHUNGIM’NAITULI.........................1STAPPELLANT
ERIC MUTETHIA .................................................. 2ND APPELLANT
AND
REPUBLIC ....................................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon G. Sogomo, PM dated
2nd April 2019 at the Magistrate’s Court at Tiganiain Criminal Case No. 1744 of 2016)
JUDGMENT
1. The appellants, ROBERT MUCHUNGOM’NAITULI and ERIC MUTEITHIA,were
charged, convicted and sentenced to 5 years’ imprisonment with hard labour for the offence of
robbery with violence contrary to section 296 (2) of the Penal Code (Chapter 63 of the Laws
of Kenya).The particulars of Count I of the charge were that on 30th July 2016 at Muriri
market, the appellants, jointly with others not before the court, robbed SHARON
NKIROTEKOBIA of a mobile phone INFINIX valued at Kshs. 33,000/- and immediately
before such robbery beat the said SHARON NKIROTEKOBIA. On Count II, it was alleged
that at the same time, the appellants robbed SYLVIA MUNORU of Kshs. 40,000/- and a
handbag valued at Kshs. 1,500/- and immediately before and immediately after the time of
such robbery, they beat the said SYLVIA MUNORU.
2. It is the duty of this court, being a first appellate court, to subject the evidence on record
to a fresh review and scrutiny and come to its own conclusions all the time bearing in mind
that it did not see the witnesses testify as to form its own opinion on their demeanour
(seeOkeno v Republic [1972]EA 32). In order to deal with the grounds of appeal, it is
necessary to outline the evidence that emerged before the trial court.
3. In order to prove its case, the prosecution marshalled 4 witnesses. Sylvia Munoru (PW 1)
was with her daughter Sharon Nkirote (PW 3) and son, TevorMuriithi at the Muriri Bus Stage
on 30th July 2016 at about 11.30 am. PW 1 recalled that when PW 3 boarded a Pro Box
vehicle, the appellants, whom she knew as touts pulled her out of the vehicle causing her to
fall. When she confronted them, they started assaulting her. Other touts joined the fray and
stole her handbag which contained Kshs. 40,000/-.
4. PW 3 also recalled that when she boarded the vehicle, the 2nd appellant pulled her
violently. When her mother intervened, he grabbed her by the throat. As she tried to
intervene, the 2nd appellant tore her blouse and threw her on the ground. The appellants and
other touts continued to assault them and stole her Infinix phone.
5. PW 1 and PW 3 were rescued and taken to the hospital. They also reported the incident to
the police. Kennedy Kimathi, PW 2, a clinical officer confirmed that he attended to PW 1 and
PW 3 at the hospital on 30th July 2016. He confirmed that PW 1 had been injured on the left
big toes with her nail extracted. PW 2 had a tender swelling on the forehead and a bruise on
the right and left knee joint. He produced the P3 medical forms for both witnesses. Corporal
Andrew Odeyo (PW 4), the investigating officer, gave an account of the investigation.
6. The 1st appellant denied the offence when put on his defence. In his unsworn statement, he
told the court he was at the bus station on the material day when he saw a woman, her son and
daughter arrive and it is the woman who grabbed the tout of the other vehicle and slapped
him. He stated that other people separated the woman and the touts and they all went their
separate ways. The 1st appellant’s witness, Julius Mberia Mururu (DW 2), also testified that
he was a matatu tout. He stated that on the material day, it was the woman who picked the
fight with the touts as she had jumped the queue.
7. The 2ndappellant denied the offence in his unsworn statement. He stated that it is PW 1
who grabbed him by his shirt and slapped him severally. He did not report because the feared
that she was a police woman. His witness, Martin Kaiyiongi (DW 4), also testified that he saw
the woman assault the 2nd appellant.
8. It is on the basis of the evidence that I have outlined that the appellants were convicted.
They now appeal on the ground that the prosecution did not prove the offence beyond
reasonable doubt. They complained that the stolen items were not recovered and none of the
exhibits were produced in evidence.
9. The offence of robbery with violence under section 296(2) of the Penal Code is proved
when an act of stealing is committed in any of the following circumstances, that is to say, the
offender was armed with a dangerous weapon or that he was in the company of one or more
persons or that at immediately before or immediately after the time of the robbery the
offender beats, strikes or uses other personal violence to any person (see Dima Denge Dima
& Others v Republic NRB CA Criminal Appeal No. 300 of 2007 [2013]eKLR, Oluoch v
Republic [1985] KLR 549 and Ganzi & 2 Others v Republic [2005] 1 KLR 52).
10. I am satisfied that the testimony of PW 1 and PW 3 was direct and consistent and proved
that they were assaulted by two or more persons and their personal items stolen. The incident
took place at daytime and they identified the appellants as touts who they knew. They
reported the incident immediately to the police station and were treated for injuries consistent
with the assaults.
11. The appellants’ defence is that the complainants are the ones who assaulted them and
that they feared to lodge a complaint with the police as PW 1 was a police woman. The
appellants did not raise this issue either with PW 1 and PW 3 or the investigating officer in
cross-examination. In any case, the trial magistrate was not impressed with their defence as he
was of the view that PW 1 and PW 3 were, “candid and forthright.” Having evaluated the
evidence before the trial court, I affirm the conviction.
12. Following the Supreme Court decision in Francis Karioko Muruateru& Another v
Republic SCK Pet. No. 15 OF 2015 [2017] eKLR declaring the mandatory death sentence
for the offence of murder unconstitutional and the subsequent case of William OkunguKittiny
v RepublicKSM CA Criminal Appeal No. 56 of 2013 [2018]Eklr where the Court of
Appeal applied the Muruatetu decision mutatis mutandis to the provisions of section 296(2)
of the Penal Code, the appellants were lucky to be sentenced to 5 years imprisonment when
the maximum sentence is death. The sentence was neither harsh or excessive. I would only
note that the addition of “hard labour” as part of the sentence was unwarranted as this is not a
punishment recognised in law.
13. Before I conclude the judgment, it is also clear that the trial magistrate failed to comply
with section 169(2) of the Criminal Procedure Code. He did not state or specify the counts
on which the appellants were found guilty and convicted given that there were two counts of
robbery with violence. In James Nyanamba v Republic [1982 – 88] 1 KAR 1165
[1983]eKLR the Court of Appeal expressed the following view;
Again the magistrate transgressed subsection (2) of section 169 of the
Criminal Procedure Code which requires that in the case of a conviction, the
judgment must specify the offence of which and the section of the Penal Code
or other law under which the accused person is convicted. Since in his opening
statement of the judgment, the magistrate did not state which accused was
charged alone in which count of the counts 3 and 4 it cannot be said that the
omission to comply with section 169(2) (ibid) did not occasion the appellant
injustice. In the circumstances of this case that omission is not cured by section
382 of the Criminal Procedure Code
14. The appeal is dismissed save the record of conviction is amended to reflect that the
appellants are convicted on Count I and Count II of the offence of robbery with violence
contrary to section 295 of the Penal Code and are each sentenced to 5 years’ imprisonment
on each count. The sentences shall run concurrently.
SIGNED AT NAIROBI
D. S. MAJANJA
JUDGE
DATED and DELIVERED at NAIROBI this 20th day of AUGUST 2020.
A. MABEYA
JUDGE
Appellants in person.
MrMaina, Prosecution Counsel, instructed by the Office of the Director of Public
Prosecutions for the respondent.
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