Kennedy Chomba Macharia v Republic [2015] KEHC 1544 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT NYERI.

CRIMINAL APPEAL NO. 111  OF  2012.

KENNEDY CHOMBA MACHARIA ................................................................................ APPEALLANT.

VERSUS

REPUBLIC .................................................................................................................... PROSECUTOR.

(An appeal from the original conviction and sentence of L. Mutai SPM in Karatina SPM’S Criminal Case No. 255 of 2011 delivered on 21st June 2012)

JUDGMENT

The appellant herein, Kennedy Chomba Macharia was charged with the offence of robbery contrary to section 296 (1) of the Penal Code.  The particulars of the charge are that on the 12th day of March, 2011, at Karatina township in Mathira East District of Nyeri County robbed Isaac Irungu Muraguri of Kshs.500/= and immediately before or immediately after the time of such robbery used actual violence to the said Isaac Irungu Muraguri.

The appellant appealed against the conviction and sentence.  At the time of hearing of the appeal, he abandoned the appeal against conviction and proceeded on with his appeal against the sentence of 6 years imposed on him by the Senior Principal Magistrate Karatina.

The evidence adduced by PW1 was to the effect that on 12. 3.2011 at 7. 00pm he went to collect his keys at the Karatina Market when he met the appellant.  He was beaten up by the appellant before his Kshs.500/= which was inside his trouser pocket was stolen by the appellant.  He stated that he was thoroughly beaten by the appellant such that he could not scream.  He afterwards informed his sister about his ordeal and reported to the police station.  PW1 knew the appellant very well.  PW1 was injured on the head, chest, shoulder, stomach, hands, legs and back. He was admitted in hospital on 15. 5.2011 as a result of the injuries he sustained.

PW2 corroborated PW1’s evidence to the effect that PW1 was attacked by the appellant.  PW2 heard PW1 say that the appellant stole his kshs.500/=.  The appellant was well known to PW2. He was a handcart pusher at Karatina market.  On cross examination, PW2 said that the attack occurred about 3-5 metres away from where he stood.

PW3 escorted PW1 to the police station on receiving a report that he was assaulted at the market.  PW1 was issued with a note to take to hospital.  PW4 examined PW1 on 12. 3.2011 and later on 15. 3.2011 when he was admitted in hospital.  He had bruises on the back and on his head.  PW1 also had lacerations on the buttocks, legs and hands at the time of examination. The injuries were an hour old at the time of examination on 12/3/2011.  The probable type of weapon used was a blunt object.  PW4 assessed the degree of injuries as harm.

PW4 testified that on 12. 3.2011, his brother –in law, who is PW1 delayed in going home.  He went to look for him at Karatina Market. PW5 met PW1 on the way, who complained of injuries to his person. He told PW5 that the appellant attacked him at the market.

PW6 received a report of robbery with violence from PW1 on 12. 3.2011.  On 18. 3.2011 he was informed by PW1’s relatives that the PW1 was admitted in hospital in a serious condition.  PW6 visited PW1 in Hospital and arrested the appellant at the Karatina Market.  PW6 issued PW1 with a P3 form.

In his defence, the appellant denied having committed the offence.

The learned trial magistrate after considering all the evidence convicted the appellant for the offence of Robbery with violence contrary to section 296(1) of the penal code and sentenced him to 6 years imprisonment.

The appellant in his grounds of appeal states that the sentence imposed on him was harsh and excessive.  He requests for a non-custodial sentence or for the sentence of 6 years to be reduced to a lesser term.

This court notes that the maximum sentence for an offence of Robbery with violence contrary to section 296(1) of the Penal Code is 14 years imprisonment.  Taking into account the extent of the violence meted out to PW1 by the appellant as outlined in the evidence, this court is of the view that reduction of the sentence will not meet the ends of justice.  The offence with which the appellant was charged with is a serious one and a non-custodial sentence will not be commensurate with the nature of the offence.

The upshot of the foregoing is that this appeal is dismissed.  The appellant will therefore serve the sentence of 6 years.  He is however at liberty to appeal against this judgment.

DATED and SIGNED at KAKAMEGA on this .........................day of .............................2015

NJOKI MWANGI

JUDGE

DELIVERED, DATED and SIGNED at NYERI on this 26th day of October 2015

J.MATIVO

JUDGE

In the presence of;-

.....................................................................................................Appellant

...............................................................................................Respondent

..........................................................................................Court Assistant