Leonard Kimathi alias Nona v Republic [2017] KEHC 1721 (KLR)

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NO.  44 OF 2017

(From original Judgment, conviction and sentence Criminal Case  NO. 456  of the CM’s Court at Meru on 23/2/2017 by J.W. WANGANGA - RM

LEONARD KIMATHI alias NONA………….………… APPELLANT

VERSUS

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

JUDGMENT

The appellant was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code.  The particulars of the offence were that the appellant on the 25th February 2011 at  Machengere Sub Location, Kiorimba Location in Tigania West District.

The trial court convicted the appellant on the lesser charge of simple robbery and sentenced the appellant to serve four years imprisonment.  The grounds of appeal are that the conviction is based on the uncorroborated evidence of a single identifying witness, trial court erred in law by finding in its judgment that the appellant gave unsworn evidence yet the appellant gave sworn evidence, that the circumstances were not conducive for positive recognition, that the appellant’s alibi defence outweighed the prosecution evidence, that the sentence is harsh and that the prosecution did not discharge its legal burden.

Mr. Arithi appeared for the appellant.  Counsel relied on the petition of appeal and submitted that the prosecution did not prove its case beyond reasonable doubt.  The appellant was not positively identified.  Mr. Odhiambo conceded the appeal.  Counsel submit that the offence occurred at 7. 00pm and the evidence on identification is not clear.  The complainant did not describe how the event took place.  Only two witnesses testified for the prosecution.

This is a first appeal and the court is bound to analyse the evidence afresh and make its own conclusion.  Before the trial court Pw1 Joseph Thuranira who was the complainant.  He testified that on the 22nd February 2011 at 7. 00pm he bonded a motor cycle heading to the market.  Two other passengers also bonded the motor cycle.  While on the way the motor cycle overturned.  One of the passengers held him by the neck while the second passenger frisked his pocket.  They took kshs.1000/=, his Id and voters card.  He reported the matter at Kibuline police post.  He was injured and was referred to the hospital.  He was later issued with a P3 form.  It is his evidence that the appellant was arrested in relation to another offence and when it was realized he was a wanted person he was charged with the offence.

PW2 Geoffrey Muthomi Murithi is a clinical officer.  He produced the P3 form.  It is his evidence that the complainant was injured by a blunt object.  In his sworn defence, the appellant testified that during the date of the alleged incident, he was working as a lorry turn boy at pipeline area in Nairobi.  He denied committing the offence.  He was arrested in February 2012.

The main issue for determination is whether the prosecution proved his case beyond reasonable doubt.  Only two witnesses testified for the prosecution.  The incidence took place at 7. 00pm.  It is PW1’s evidence that they all fell from the motor cycle.  PW1’s screamed when he was being robbed but no one went for his rescue.  Nothing was recovered from the appellant.  The charge sheet indicates that the appellant was arrested on 18th April 2011.  No police officer testified as to whether PW1 described the robbers.  From 22nd February 2011 to the date of arrest on 18th April 2011 there is no indication that the police were looking for the appellant.  PW1 testified that the appellant went underground.  That could have been the case if there was evidence that the police and PW1 went to look for the appellant but did not find him.  It is not clear how the appellant was arrested for another offence yet he had gone underground.  The investigation officer did not testify.  He was a crucial witness who could have corroborated the evidence of PW1.  The incidence occurred at night and PW1 had just fallen from the moving motor bike.

In the Judgment the trial court observed that PW1 knew the appellant very well yet pW1 did not testify to that effect.  It is also indicated in the judgment that the appellant gave unsworn statement yet he gave sworn evidence.  Since the incidence occurred at 7. 00pm and there is no evidence that PW1 gave the appellant’s name or describtion to the police, I do find that the evidence on record does not prove the charge of robbery beyond reasonable doubt.  The trial court found the appellant guilty of the offence of robbery.  The conviction is not safe as it is based on the evidence of only two witnesses.  According to the complainant, the appellant was arrested on a different case.  It is not clear how PW1 knew that the appellant had been arrested.

I do agree with Mr. Odhiambo that the prosecution did not prove its case beyond reasonable doubt.  The appeal is merited and is hereby allowed.  The appellant shall be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 21ST DAY OF JULY 2017

SAID CHITEMBWE

JUDGE