KOMOLE MAIWA LOONIRKO v REPUBLIC [2010] KEHC 1604 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Criminal Appeal 66 of 2009

KOMOLE MAIWA LOONIRKO::::::::::::::::::::::::::::APPEALLANT

=VERSUS=

REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(Appeal from the decision ofHon. H.M. Nyaga ESQ. Senior Resident Magistrate delivered on 21st April, 2009at the SeniorResident Magistrate’s Court atKabarnet in Kabarnet SRM.CRC. No. 425 of2008

on conviction and sentence)

JUDGMENT

I.Background

1. In this Criminal Appeal, the Appeallant appeared before the Senior Magistrate’s Courts at Kabarnaet and was charged with the offence of :

I.Robbery With Violence

Contrary to Section 296 (2) of the Penal Code

The Particulars of offence being:

Thaton the 22nd November 2007 at Kaiabata Location, in Baringo District within the Rift Valley Province jointly with others not before Court while armed with a dangerous weapon namely an AK 47 riffle robbed Rael Reriki Rotichof 83 goats all valued at Kshs 100,000/= and at immediately before or immediately after the time of such robbery wounded Michael Komen.

2. A Second Count was preferred being:

II.Stealing of Stock

Contrary to Section 278 of the Penal Code.

The Particulars ofOffence being:

On the 5th day of June 2008 at Loiwat Location Baringo EastDistrict within the Rift Valley Province, jointly with others not before Court stole one goat valuedat Kshs 2,000/= the property of Tapegwang Lokomolia

3. The Appeallant Original Accused, pleaded not guilty to both counts on 22nd July 2008. His case was set down for trial in whichevidence was disclosed howthe Complainant P.W.4 had hired the Appeallant as a herds boy.On the night of 21/22 November 2007, she heard noises coming from the goat pen.Shekept quiet till the noise ceased.After an hour, she went out only to find all 83 goats had been stolen.

4. The Assistant Chief P.W.3 on receiving this information notified the police who gave pursuit.One of the police P.W.1 saw the Appeallant who shotat himthenfled leaving the goats behind.

5. The Appeallant wasarrested and charged.

6. In his defence the Appeallant stated thathe was at the market centre to buy flour.He wasinformedthat he waswanted at the police station.Hewas questionedand charged with the offence.He denied that he was a robber.

7. The Trial Magistrate found that according to theGathuri Njuguna –vrs Republic (1965) EA 583 Case thatto prove Robbery it must be committed openly and in the presence of others.The case in question showed that the Appeallant ought to be charged withstock theft.The Appeallant was convicted on Count II for stock theft Contrary to Section 278 of the Penal Code and Sentenced to 10 years imprisonment.

II.Appeal

8. Being dissatisfied with the conviction and sentence the Appeallant appealed on grounds that::

(i)He pleaded not guilty to the offence

(ii)The trial Magistrateerred in

convicting him for stock theft instead of convicting and or charginghim for Robbery with Violence Contrary to Section 276 (2) Penal Code

(iii)The Trial Magistrateerred in

rejecting his defence

(iv)Failing to call witnesses.

9. In his submissions before Osiemo J, the Appeallant claims he was tried and convicted for a lesser offence of Robbery with Violence Contrary to Section 296(1) penal Code and sentenced to 10 years imprisonment.He prayed that the sentence be reduced.

10. The State most certainly objected to the said request of reducing the sentence stating the maximum sentence was that of 14 years imprisonment.

III.Opinion

11. The Appeallant faced two Counts before the Senior Magistrate’s Court, that is:

(i)Robbery With Violence Contrary to Section 296 (2) Penal Code that carriesa Death Penalty

(ii)Stock Theft Contrary to Section 278 Penal Code that caries 14 years imprisonment

12. It thereforeis notcorrect that the

Appeallant’s case was a convictionof simple Robbery duly reduced? By the Court.The Appeallant in fact was acquitted on the offence of Robbery with violence Contrary to Section

296 (2) Penal Codebut convicted on the issue of Stock Theft relied on.

12. The issue of conviction, apart from the petition of appeal was never dealt with in submissions by the Appeallant. The Petition of Appeal relied on the issue that the defence was rejected and not relied on.

13. To thisend, the Appeallant may not have brought out this point in his submissions.He was recognized by those whom he is alleged to have attacked.

14. At the appeal stage the Appeallant’s prayer only for the reduction of his sentence from 10 years imprisonment.

15. I find herein on the issue of conviction that the Appeallant had abandoned this.On the issue of sentence, the same was within the law.I am not inclined to interfere with this case.

16. The Appealis dismissed.

Dated this 1st day of September 2010 at ELDORET

M.A. ANG’AWA

JUDGE.

Advocate

(i)J.K. Chirchir, Senior State Counsel, instructed by the Office of the Attorney General for the State-Present

(ii)Komole Maiwa Loonirko, Appeallant in person-Present