Daniel Nduati Mwangi v Republic [2017] KEHC 456 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO: 144 OF 2016

(From Original Conviction and Sentence

inCriminal CaseNo: 3474 of 2009 of the

Chief'sMagistrate’s Court at Thika.)

DANIEL NDUATI MWANGI.....................APPELLANT

-V E R S U S-

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

J U D G M E N T

1. This is a judgment in a Criminal Appeal No: 144 of 2016. The appellant, DANIEL NDUATI MWANGI, was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, along with JAMES WAINAINA as 2nd  accused.

Particulars thereof were that on 20th  day of July, 2009  at Mihango sub-location in Muranga South District within Central province, jointly with others not before this court while armed, with pangas and rungus robbed STEPHEN KAMANDE MUTHEU cash of Ksh. 3000/= and at the time of such robbery used actual violence to the said STEPHEN KAMANDE MUTHEU.

2. The appellant have denied the offence was duly tried and subsequently found guilty, convicted and duly sentenced to death. The 2nd accused was acquitted.

3. The appellant being aggrieved and dissatisfied has appealed against both the conviction and the sentence. He is prosecuting his own appeal.

His grounds of appeal are summarized as follows:

1. The trial court relied on sole identification evidence of PW1 without warning himself of the dangers of convicting on such evidence.

2. That there was no corroboration of the evidence of PW1.

4. The respondent through Madam Ngalyuka opposes this appeal. She submits as follows:

1. That the offence was proved beyond reasonable doubt.

2. The complainant PW1 in his testimony, it is clear that the circumstances were indeed for positive identification i.e. it was 5p.m. and the appellant was known to the witness. This was a question for recognition. This identification is free from error.

3. The ingredients of robbery with violence states that the appellant was armed with a panga. PW2 corroborates the evidence of PW1. PW2 was a complainant in Count II assault on PW2 confirms he met with the appellant both threatened and the appellant was armed with a panga.

4. The offence is therefore proved beyond reasonable doubt on PW1& PW2. The conviction is therefore safe.

5. We urge the court to uphold the count I. As count II is a suspended sentence.

5. 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. TESTIMONIES: ANALYSIS

On 20/07/2009, PW1was accosted by the appellant and along with JAMES WAINAINA. The appellant forcefully took Ksh. 3000/= from his pocket after strangling him, while the 2nd accused held his legs. PW1knew the appellant very well, as it was 5p.m. day time, and the appellant being his neighbour. They were armed with a panga. Later on PW2 – PAUL MWANGI - the brother of PW1, came to his rescue. They met the appellant and when PW2confronted them, the appellant removed a panga from his shirt, threatened to cut his neck. The second accused hit PW2 with as stone.

PW4– The Doctor – confirmed injuries suffered by PW2, as blunt injuries.

7. I satisfied the appellant was positively identified by recognition. The           appellant was their neighbour and a cousin.

The elements of robbery with violence offence were present and proved beyond reasonable doubt.

8. FINDINGS

For these reasons, the appeal is hereby dismissed. The conviction and sentence on count I be and is hereby upheld.

Right of Appeal accorded – 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