Maurice Onyango & Peter A. Wanywa v Republic [2001] KECA 106 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL AT KISUMU CORAM: TUNOI, LAKHA & OWUOR, JJ.A. CRIMINAL APPEAL NO. 3 OF 2000BETWEENMAURICE ONYANGO                                                              PETER A. WANYWA .....................................APPELLANTS   AND REPUBLIC ..................................................RESPONDENT(Appeal from a judgment of the High Court of Kenya at Kisumu (Wambilyangah J) dated 18th June, 1999 in KSM. H.C.CR.A. NOS. 210 & 211 OF 1998) **************************** JUDGMENT OF THE COURT In this second appeal, we are satisfied that there are no grounds for impeaching the concurrent findings by the two lower courts that the appellants, who were well-known to the complaint and the two main prosecution witnesses, were properly identified. It was established that the attack took place at about 5 p.m. along a busy road on a polling day. The identification in our view, was free from error.

The defence of alibi advanced by the appellants was not available to them for they were at the scene of the robbery.

The account of what happened by the complainant who unhesitatingly named his assailants (the appellants) to the Police agrees in all material respects with the evidence of the other prosecution witnesses.

In the end we have come to the inevitable conclusion that this appeal has no merit and must fail. It is accordingly dismissed. However, the sentence is varied to include automatic police supervision order for a period of 5 years from the date of release from prison as is mandated by section 344 A of the Criminal Procedure Code .

Dated and delivered at Kisumu this 19th day of March, 2001.

P. K. TUNOI --------------- JUDGE OF APPEAL

A. A. LAKHA --------------- JUDGE OF APPEAL

E. OWUOR --------------- JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR