Daniel Mwaura v Republic [2017] KEHC 472 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO: 56 OF 2016

(From Original Conviction and Sentence in Criminal Case

No: 6165 of 2011 of the Chief Magistrate’s Court at Thika)

DANIEL MWAURA.........................................APPELLANT

-V E R S U S-

REPUBLIC......................................................RESPONDENT

J U D G M E N T

1.  This is the judgment of Criminal Case No: 56 of 2016. The appellant DANIEL MWAURA, was charged with the offence of Robbery with violence contrary to Section 296 (2) of the Penal code.

The particulars thereof were that on the 1st days of November, 2011 at Wataalam village in RuiruDistrict within Kiambu  county, jointly with others not before the court, while armed with dangerous weapons namely pistol robbed one GEORGE NGUGI  NGANGA – (1) A motor vehicle registration  No:  KBP 084F  make Toyota  WISH  (2) Cash Ksh. 5,000/= (3) Mobile phones make Nokia E52 and 1661 (4) 1 wedding ring (5) 1 jacket and (6) 1 pair of shoes all valued at Ksh. 1. 164,300/= and at all time of such robbery threatened to use actual violence to the said GEORGE NGUGI NGANGA.

2.  The appellant was duly convicted and sentenced to serve life imprisonment.

3.  THE APPEAL

The appellant being aggrieved and dissatisfied has now appealed against both conviction and sentence. The appellant is conducting his own appeal. His main ground of appeal can be summarized to be:

1.  THAT, there was no evidence of identification and there was no identification parade.

This ground also appears in the appellant’s amended supplementary grounds of appeal.

The appellant relied wholly on his written grounds of appeal, original and supplementary.

4.  The respondent being represented by Madam Ngulyukia, opposed this appeal.

1.  It is our submission that the appellant was sufficiently identified by PW2and PW1, both of whom testified that he saw the appellant at the gate.

2.  That further PW2 spent four (4) hours with the appellant in the company of others a period long enough to identify the appellant.

3.  Further, that shortly after that both PW1 & PW2 were able to recognize the appellant at Kenyatta National Hospital where he had been admitted, leading to his arrest.

4.  That therefore, even though identification parade was not conducted, it was after identification of the appellant that led to his being arrested.

5.  The appellant was also accorded fair trial, any contradiction that is cited is not material to vitiate the trial of the appellant.

6.  This appeal be dismissed and the sentence and conviction be upheld.

5.  THE FIRST APPEAL

This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.

6.  QUESTIONS FOR DETERMINATION

1.  Was the appellant sufficiently identified?

2.  Did the appellant rob the complainant?

3.  Did he use violence, threats of violence on the complainant?

7.  TESTIMONIES OF THE WITNESSES: ANALYSIS

PW2 and PW1were travelling home and were attacked as they prepared to enter the gate of their home in Ruiru on 11/11/11. The appellant had a pistol with which he threatened the PW1 and PW2, GEORGE NGUGI NGANGA and MRS. ESTHER WANJIRU MUCHIRI - husband and wife. There were security lights with which they were able to identify the appellant.

The husband was tied and blindfolded. However, the wife was made to sit at the back seat. The appellant and others with him robbed PW1 & PW2of their phone Nokia, Ksh. 4,000/= and a rain jacket and ATM card and ID card, using a pistol he threatened them.

PW2 worked at Kenyatta National Hospital. Both PW1 & PW2 were able to recognize the appellant who had been admitted at Kenyatta National Hospital. They reported to the police and the appellant was subsequently arrested and charged with this offence.

Therefore, I agree with the prosecution that the appellant was sufficiently identified. He robbed the complainant of the stated items and used violence, threats of violence on the complainant.

8.  FINDINGS

For those reasons, this appeal is hereby dismissed. The court upholds both the conviction and sentence.

Right of Appeal – 14 days

JUDGMENT WRITTEN AND SIGNED BY:

C. B. NAGILLAH

JUDGE

JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY:

THIS 3RD DAY OF OCTOBER 2017

JOEL NGUGI

JUDGE

In the Presence of:

........................................the Appellant

.....................................for Respondent

..............................for Court Assistant