NAHASON OBIERO v REPUBLIC [2010] KEHC 1404 (KLR)

REPUBLIC OF KENYA

AT THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL 16 OF 2008

NAHASON OBIERO:::::::::::::::::::::::::::::::::::::::::::::::::APPEALANT

VERSUS

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

JUDGMENT

((Appeal from the decision ofHon. H.M. Nyaga,ESQ. Senior Resident Magistrate delivered on 8th April, 2008at the Senior Resident Magistrate’s Court atKabarnetinKabarnet SRM

No. 16of2008on conviction and sentence)

Introduction

1. The Appeallant Nahason Otieno was Originally charged with the offence of:-

Robbery with Violence Contrary to Section 296(1) of thePenal code.

The Particulars of offence being:

That on the 28th June 2007 at about 19. 00 hours at Kabarnet town inBaringo District within the RiftValley Province jointly with anothernot before Court robbed Julia Rotich

(of):---

(i)Loaf of bread

(ii)Seven (7) kilograms of sugar

(iii)Onelitre of milk

(iv)One umbrella

All valued at Kshs 390/= and at immediately before or immediately after the time of such Robbery struck and wounded the said Julia Rotich.

2. A Plea of not guilty was entered on the 2nd August 2007 before the Magistrates Court.

3. The Appeallant was convicted and sentenced to a term of 5 years imprisonment.Being dissatisfied with this decision he appealed to this High Court of Kenya at Eldoret.

4. The Appeal came for hearing before Osiemo J and was fully argued by the Appeallant and the State.Hon.

Osiemo J was not available to complete the Judgment.The Appeallant informed this Court that he wished to rely on the submissions given to Osiemo J on his appeal.The State, likewise.

5. Section 354(1) of the Criminal

Procedure Code (CPC) refers.

II.Facts

6. The Complainant stated she knew the Appeallant and was familiar with his voice.On the evening of 28th June 2009, at about 7. 00 p.m. she left her business carrying assorted amount of shopping in a way when the Appeallant and another merged from a bush and walked in front of her.

y turned around and came towards her threatening that she should not scream.She ran screaming towards the forest department building.The Appeallant caught up with her and hit her on the head till she bled. Theystole her bag and assorted shopping as stated in the charge sheet, valued at Kshs 390/=.The forest guard came after she was robbed.

8. Unknown to the Appeallant P.W.2, a deaf and dumb witness knew and had seen the incident well.He too knew the Appeallant and of his character.He was afraid to assist the Complainant but he did go to the Police to make a report.

9. The Trial Magistrate found the Appeallant guilty and convicted him on the said Count.A sentence of 5 years imprisonment was then passed.Being dissatisfied with this the Appeallant filed an appeal.

III.Petition of Appeal

10. In his Petition of Appeal in summery, the Appeallant stated:-

(i)There was a miscarriage of justice as there was no corroboration to the evidence on material facts and procedure.

(ii)The Trial Magistrate erredin relying on the prosecution evidence that was contradictory

(iii)There was no identification parade

(iv)Therewas no evidence of an arresting officer

(v)There was proposition or supposition instead of facts provedbeyond reasonable doubt

(vi)The defence must be consideredin the light of all evidence

(vii)There was no ingredient of Robbery with Violence thatthat had been established

11. The state in reply argued that there was sufficient evidence and that the conviction and sentence be upheld.

III.Opinion

12. The issue before this Court is not that of whether an identification parade was conducted but that of recognition.The complainant recognized the Appeallant as someone she knew.P.W.2 – the deaf and dumb physically challenged witness also recognized him as someone he knew well.It was indeed P.W.2 who corroborated the evidence of P.W.1 the Complainant and how he had seen and witnessed the attack.Both the Appeallant and another had walked very close to him prior to the attack and he recognized the Appeallant.

13. It was further noted that the Appeallant was arrested by P.W. 4 P.C. David Musyimi of the KabarnetPolice Station on the 30th July 2007. TheAppeallant was arrested at a home.

14. This Court is therefore disturbed that the Complainant having been knocked on the head bled deeply.(The violence inflicted on her was brutal) that the police preferred a charge of simple robbery.This is indeed injustice.The trial Magistrate convicted for simple robbery.

15. Evidence of violence was given through a police form that had been issued to the Complainant but was not taken into account by the trial Court.It was tendered in evidence by P.W.3 by Michael Cheburet A Clinical Officer at Kabarnet District Hospital filled on 29th June 2007.

16. The Appeallant indeed ought to have charged with Robbery with Violence Contrary to Section 296(2) of the Penal Code.

17. I hereby uphold the conviction before Court.

18. As to the sentence it was not in order for the prosecutionto utter words such as “ ... the accused has another case in another Court coming for sentencing” nor stateprior to sentencing of his case,

“the accused was convictedyesterday in another Court awaiting sentencing”

19. This means that the Trial Magistrate is influenced in a biased manner.The only proof of previous conviction is by the production of the Police Registration of previous conviction forms.Other information ought notto be relied on.

20. The sentence would not nonetheless be interfered with due to the charge that had been preferred.

21. I dismiss the appeal on conviction and sentence.

Dated this 27th day of July 2010 at Eldoret

M.A. ANG’AWA

JUDGE

Advocate

(i)J.K. Chirchir instructed by the office of the Attorney General for

the State -Present/Absent

(ii)Nahason Otieno (Appeallant in person)-Present/Absent