No luck as convict's appeal to overturn death sentence fails

When Esther Onyancha Davy hired Tobias Odoyo Obwolo to help her offload sugarcane from one tractor to another, she did not anticipate an attack.

It was a moonlit night on May 6, 2015, when her tractor which was heading to Ndhiwa rolled off the road at Chamgiwadu Trading Centre while trying to overtake another which had broken down on the road.

Not deterred by the accident, Esther decided to get another tractor to transport her sugarcane.

To ensure that off-loading and reloading was fast, she hired five people to help her loader and driver do the work.

Tobias was among them.

Upon completion, they got their pay and walked away but Tobias and his accomplice returned shortly after.

They headed towards Esther and her loader, who were watching the first tractor being pulled up and attacked them with rungus.

She screamed prompting the drivers to rush to her but the attackers had fled, making away with her handbag, two ATM cards, an identity card, two Huawei phones, two Nokia phones, one Samsung phone and Sh7,000.

In need of a doctor's aid, they were rushed to the nearby hospital where their injuries were classified as harmful and P3s form filled.

At around 9 pm, after receiving the news, Esther's husband reported the incident to Ayora AP Post and Tobias was arrested.

He had been recognised by Esther, her loader and one of the drivers.

The officer recovered two handbags and other papers from the scene.

At Tobias' house, a search recovered a National Bank ATM card in the name of Onyancha, under a pillow on a bed.

A KCB ATM card in Esther’s name was also recovered from the trousers Tobias was wearing.

Tobias was arraigned before the Principal Magistrate's Court in Rongo and charged with the offence of robbery with violence.

The prosecution produced five witnesses.

When he was placed on defence, Tobias confirmed that he did help in offloading the sugarcane as testified by Esther and her loader.

He maintained, however, that after he was paid, he left and was surprised to see police come to his house some days later, ransack it and arrest him on the allegations that he had attacked Esther.

Tobias said he did not own a bed or a pillow.

Upon considering the evidence before it, the trial court found the prosecution had proved its case against the men and sentenced them to death.

Unsatisfied, Tobias and his co-accused challenged both the conviction and sentence at the High Court at Migori.

They argued that their identification was not proper and no identification parade was conducted.

To their ill luck, the High Court, after considering the proceedings and the judgment of the trial court, upheld both decisions.

Tobias did not give up and he filed a second appeal at the Court of Appeal in Kisumu raising two issues of determination.

These included whether the prosecution followed the principles of identification and carefully discharged the burden of proof and whether sentencing was in accordance with the Constitution.

He told the court that the prosecution adduced contradictory evidence and that the charge against him was not proved beyond reasonable doubt to secure a conviction on a charge of robbery with violence.

He noted that in her testimony, Esther said her bag was found on the plantation and then stated that she was told by the police that her bag and ATM cards were found with Tobias.

She also testified that the ATM cards were not recovered but later changed this and said Tobias and his co-accused had been found with the cards.

Tobias submitted that the contradiction on where the ATM cards were found immediately raised the spectre of uncertainty, adding that at the time of his arrest, he had stated that he did not have a bed.

He also told the court that had produced a receipt to demonstrate that he had just bought a bed, yet the arresting officer testified that he found the ATM card under the pillow on the latter's bed.

Justices Patrick Kiage, Mumbi Ngugi and Francis Tuiyott, however, said the above submissions went to matters of fact, outside the remit of the court according to the Criminal Procedure Code.

"The Court will not, in a second appeal, interfere with concurrent findings of fact by the two courts below except in rare occasions where it is shown that such findings are based on no evidence, are based on a misapprehension of the evidence, or the courts below are shown to have acted on wrong principles in making the findings," court documents read.

On the issue that his identification was not proper, Tobias argued that even though the material night was moonlit, it was doubtful that the moonlight was sufficient for identification.

With regard to sentence, he submitted that the mandatory death sentence under section 296(2) of the Penal Code in a conviction for robbery with violence is unconstitutional.

He also cited a Supreme Court decision in the case of Francis Karioko Muruatetu versus the Republic of Kenya, which declared the death sentence unconstitutional.

The prosecution, however, opposed the appeal, saying Tobias was positively identified.

It said the man was well known to both Esther and her loader as they had spent considerable time with him, from 3 pm to 8 pm, loading sugarcane onto the tractor.

This was shortly before the attack.

The prosecution also submitted that the man had not raised the issue before the first appellate court, and he could therefore not raise it before the Court of Appeal.

With respect to the claim that the sentence imposed on him was harsh, excessive and unconstitutional in light of the Supreme Court decision in Muruatetu 1, the prosecution submitted that the decision is not applicable in the circumstances of the case.

The three-judge bench reviewed the case and on the matter of identification, found that the first appellate court was correct in finding that the identification by recognition was safe.

They found that having interacted with the victims for hours prior to the attack, he was no longer a stranger to them.

"This was not a case of identification of a stranger but recognition of a person known to the witnesses," the court papers read.

The court also found that the conviction was supported by the evidence of the recent possession by Tobias of Esther's ATM cards.

"We therefore find no basis to interfere with the finding of the first appellate court that the conviction of the appellant (Tobias)for the offence of robbery with violence was safe. There was evidence to justify the concurrent findings of fact by the two courts below," the court said.

Further, the court agreed with the prosecution that the Supreme Court's ruling on the unconstitutionality of the sentence applied to the offence of murder.

It noted the directives of the apex court in offences such as treason under section 40(3) and robbery with violence under section 296(2) of the Penal Code respectively.

Challenges on the constitutional validity of the mandatory death penalty in those cases would have to be filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as in Muruatetu 1 may be reached.

"Accordingly, we are unable to interfere with the sentence imposed on the appellant by the trial court and upheld by the first appellate court," the court said.

"In any event, we have noted that this ground was not raised in the appeal before the High Court. It cannot, therefore, be properly raised in the appeal before this Court."

On September 22, the Court found that the appeal lacked merit and dismissed it, upholding Tobias' conviction and sentence.

The man will have to serve the sentence imposed.