ALEX KIPCHUMBA V REPUBLIC [2006] KEHC 3095 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

Criminal Appeal No. 332 of 2004

ALEX KIPCHUMBA ……………..................................................……………… APPELLANT

VERSUS

REPUBLIC ………………….............................................…………………… RESPONDENT

(Appeal from original conviction and sentence in Eldama Ravine Criminal Case No. 641 of 2003 – Kagendo W. M – RM)

JUDGMENT

The Appellant was convicted by the Resident Magistrate’s Court Eldama Ravine on a charge of Robbery contrary to section 296(1) of the Penal Code and he was sentenced to 4 years imprisonment.  The Appellant was jointly charged with a second (2nd) accused and another one who was not present in court.  The Apellant being unsatisified with both the conviction and the sentence has appealed before this court.

The facts leading to the sentence and conviction were that on 11th day  of Auguts 2003 at Metipso area in Koibatek District within Rift Valley Province, jointly with others not before the court, robbed KIPLANGAT CHERUIYOT of Kshs.7,000/- and the time of such robbery used actual violence on the said Kiplangat Cheruiyot.

The * was that the complainant was at an all night party on the night of 11th August, 2003.  The Appellant together with the 2nd accused person and a 3rd person called Kipkemoi Cheruiyot were also at the same party.  The complainant said that he spent the whole night and was in possession of Kshs.7,100/- which were the proceed  of a sale of a cow.  He removed Kshs.100/- to contribute for the party and kept the rest of the money in the pocket.

He started going home at around 5. 00am and while on the way home he was waylaid by two people that the 2nd accused and the other person were not before court.  It is at this part after the complainant was knocked down and the 2nd accused stabbed him with a knife that the Appellant found them.  The Appellant was armed with a stone and hit the complainant on the ribs.  The complainant managed to run after the 2nd accused who ran up to his house and locked himself inside.  The complainant tried to push the door and was hit with a stone from behind by the Appellant it however missed himand hit the door.  At this time the parents of the second accused were awoken by the commotion and the complainant explained to them that the 2nd accused had stolen the Kshs.7000/- and stabbed the complainant.  When the parents did not take any action, the complainant went back to the place where there was a party and reported what had happened.  He was later taken to hospital and reported the matter to the police.  Later in the day he led the police who re-arrested the Appellant who had been arrested by the members of the public following the complainants report at the party.  The Appellant’s grounds of appeal have principally attacked the weight of the evidence especially on identification and lack of evidence to support the allegation that the complainaint had even robbed of a sweater which was never produced as an exhibit.  The Appellant also requested the court to consider that even the knife that was produced as an exhibit by the complainant himself*

I have carefully re-evaluated the evidence and the judgment of the subordinate court.

This is necessary especially due to the fact that the Appellant was convicted on the evidence of a single identifying witness.  As established now and it is trite law a fact maybe he * by the testimony of a single witness, this does not lessent the need for testimony with the greatest care the evidence of a single witness respecting* especially when it is know that the *

In this case, the complainant who identified the Appellant said that he had always known the Appellants * they were together at the  all night party and the Appellant emerged from behind and hit him with a stone and tried to him him with another stone when the complainant persued the second accuased to his house and was trying to push the door open.  This was in the wee hours of the morning.  I am satisfied the magistrate warned herself * and after considering the impressions made from the complainant’s evidence whom the court found cogent and credible and therefore convicted the appellant.  While considering this case, I have looked at some discretion by the court of appeal in the case of MAITANYI VS REPUBLIC 1986 KLR page 198 especially the reflection of the holding * celebrated case of ABDULLA BIN WEWNO & ANOTHER VS REPUBLIC (1953) 20 EALA where it was held:

“Subject to well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testimony with the greatest care the evidence of a single witness respecting *, especially when it is known that the * favouring a correct * were difficult.  In such circumstances what is needed is * ensure whether circumstantial or direct *, from which a judge or jury can personally conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

I am satisfied the learned magistrate took * necessary precaution and arrived at the * that this was an identification based on recognition of the Appellant by the accused person.  The complainant gave the proper identification of his assailants to those * he was at the party that led to the arrest of the Appellant the same day.

In this case the magistrate arrived at the proper conclusion and convicted the appellant.

As regards the sentence, the maximum sentence permitted by law is (14) fourteen years and I found the sentence of four years appropriate.

In the sum total this appeal fails and is accordingly dismissed.

Judgment read and signed on 2nd March, 2006.

M. KOOME

JUDGE