EDWARD OTIENO ODUOR vs REPUBLIC [2004] KEHC 1871 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 160 OF 2003

EDWARD OTIENO ODUOR ………………………………..APPELLANT

VERSUS

REPUBLIC …………………………………………………..PROSECUTOR

(APPEAL FROM ORIGINAL SIAYA SRM CR. CASE NO. 481 OF 2002)

JUDGMENT

Edward Otieno Oduor was charged before the Senior

Resident Magistrate’s Court, Siaya in Criminal Case No. 481 of 2002

with the offence of robbery with violence contrary to section 296 (2)

of the Penal Code. He denied the charge and was therefore tried

before Mr. F.M. Omenta Senior Resident Magistrate who at the end

of the trial found him guilty of simple robbery contrary to section

296(1) of the Penal Code. Upon conviction he was sentenced to 4

years with 2 strokes and it is against both his conviction and

sentence that he has lodged this appeal.

It was alleged that on 22/6/2002 at Akala market in Ndori

sub/location within Siaya District of the Nyanza Province jointly with

others not before the Court the appellant robbed Samson Ombima

Ochieng of Cash Kshs. 2,000/- and immediately before or

immediately after the robbery he used violence to the said Samson

Ombima Ochieng.

The said Samson Ombima Ochieng testified as PW1 and said

that on 22/6/2002 he went to a latrine at the said market and while

he was relieving himself a man came and held him by the neck and

robbed him of kshs. 2,000/- . PW1 said that he raised an alarm and

the man ran away. PW2 a water attendant at the said market told

the Court that while he was at his place of work he heard screams

from a latrine and immediately thereafter he saw the appellant whom

he knew emerge from the said latrine and was followed by PW1 who

was screaming that he had been robbed of kshs. 2,000/- and wanted

help. PW2 said that he told PW1 that the person who had robbed

him was called Otieno and used to prepare soup using legs of cows.

PW2 said that the assistant chief went to see him alter on and

he told him that the man who had robbed PW1 was Otieno. PW3

Assistant Chief of the local area received the complaints of PW1 who

told him that PW2 was his witness. PW3 said that he went to see

PW2 who told him that the person PW1 was following was the

appellant. The appellant admitted that he was at the said toilet but

he denied that he robbed the complainant.

I find that the appellant was convicted on sound evidence. He

was properly identified by PW2 who saw him. PW2 told PW1 and

PW3 the name of the appellant. Appellant admitted that he was to

prepare soup. The appeal is therefore without merit and the same is

dismissed.

Dated and delivered this 26th April 2004.

B.K. TANUI

JUDGE