Hesbon Ochieng v Republic [2013] KEHC 5591 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 153 OF 2009

HESBON OCHIENG...................................................................APPELLANT

VERSUS

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

(From the Original Conviction and Sentence in the Criminal  Case No.50 of 2009 of the Chief Magistrate's Court at  Mombasa –  Hon. R. Kirui – PM)

JUDGMENT

HESBON OCHIENG the appellant herein was charged and Convicted of the offence of Robbery with Violence contrary to section 296 (2) of the Penal Code and Sentenced to suffer death.

The Particulars were that on the 30th day of December, 2008 at  Mikindani area of Mombasa County, jointly, with others not before the Court and while armed with dangerous weapon namely knives robbed BERNARD KAVINGA KISWILI of two bales of maize flour valued at Ksh. 1,600/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said BERNARD KAVINGA KISWILI.

The Complainant and his colleague BENJAMIN NYAMAI (PW 2) employees of one KITHEKA (PW 3) had been sent to go and purchase two bales of maize flour and one of wheat.  After buying same they loaded them onto their bicycles ready for transportation to their places of work.  The Complainant was carrying the two bales of maize flour whereas his colleague (PW 2)was carrying the wheat one.  It is their evidence that on the way  back they met three youths who confronted them and managed to forcefully make away with the two bales of maize flour the Complainant was carrying.

After the attackers left the duo decided to report the matter at the nearby Railways police station.  They were given one police officer with whom they returned to the scene with, but they were not able to trace the robbers.

The following day they were called at Railway police station where they found the Accused and identified him as one of the youths who had accosted them and stolen their property.

The main issue in this case is that of identification.  The two witnesses PW 1 and PW 2 maintain that they knew their attackers before this incident.

It is instructive to note that the incident took place at around 2:30 pm which was in broad day light yet neither the names of the suspects nor their descriptions were given to police.

During cross-examination by the Accused (at page 10 of the proceedings line 6) the arresting officer told the Court,

“The Complainant came to us at 1:00 pm but we    visited the scene at about 2:30 pm.  He never gave us    any description of anybody. We arrested you      because you had been involved in the theft of      aluminum sheets together with George”.

From the above its clear that its not the witness who pointed out the Accused to police for them to effect the arrest.

No descriptions  of the Appellant were given to them and they arrested the Accused not in relation to this case of robbery but with another of theft of aluminum sheets.

It is also not in dispute that no identification  parade was carried out on the Accused. We are of the considered view that the alleged identification  of the Accused by PW 1 and PW 2 was not free from error.  We are satisfied that the Conviction was not safe.  The Conviction is quashed and Sentence set aside.  The Appellant is set at liberty unless otherwise lawfully held.

Judgment dated and delivered in open Court this 3rd day of June, 2013.

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M.  ODERO                                                                  M.MUYA

JUDGE                                                                        JUDGE

In the presence of:-

Learned State Counsel

The Appellant

Court clerk