Edwin Kamau Munjiru v Republic [2019] KEHC 7755 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL APPEAL NO.  215 OF 2013

[FORMERLY NYERI HIGH COURT CRIMINAL APPEAL NO. 32 OF 2012]

EDWIN KAMAU MUNJIRU...........................................APPELLANT

VERSUS

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

RULING

1. The appellant was adjudged guilty of robbery with violence contrary to section 296 (2) of the Penal Code. He was sentenced to death.

2. The particulars were that on 15th November 2010 he and his co-accused jointly robbed Ephantus Njoroge Kamau of a mobile phone Nokia 1110, Kshs 300, a pair of shoes and a jacket all valued at Kshs 4000 and at or immediately before the robbery they used actual violence on the complainant.

3. His first appeal to the High Court was heard by a mixed bench of a High Court Judge; and, an Employment and Labour Relations Court Judge. The learned judges dismissed the appeal.

4. The renewed appeal follows the directions by the Supreme Court in Republic v Karisa Chengo & 2 others,Petition No. 5 of 2015 [2017] eKLR.

5. On 13th March 2019, the appellant lodged an application praying for production of the Occurrence Book number 20/16/11/2010 from Kahuro Police Station.

6. The application is expressed to be brought under Article 50 (2) (j) of the Constitution. The Article requires the prosecution to make advance disclosure of the evidence to be used at the trial. The appellant avers that the additional evidence will prove his innocence.

7. The petition is contested by the Republic. The gravamen is that the appellant never sought to rely on such evidence at his trial; and, that the application is an afterthought.

8. On 14th March 2019 I heard brief submissions from the appellant and the learned Prosecution Counsel.

9. The substantive appeal is pending for hearing. I am cautious not to comment on the merits of the appeal. But I have closely studied the record of the lower court. The applicant does not say that the Occurrence Book was unavailable during his trial. He never requested for it; and, it never formed the coreof his defence.

10. The application is also belated. The trial commenced way back on 18th November 2010. There is no evidence that that the information only became available recently.

11. The application is undoubtedly an afterthought. It is without legal foundation. It is hereby dismissed.  The main appeal shall now be set down for hearing.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 13th day of May 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:-

The appellant (absent)

Ms. Gichuru for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.