STEPHEN MAINA MUNGAI vs REPUBLIC [1998] KEHC 171 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL NO. 1303 OF 1996

STEPHEN MAINA MUNGAI ………………………………… APPELLANT

VERSUS

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

(From original conviction and sentence in Criminal Case No. 3679 of 1994

of the Chief Magistrate’s Court at Nairobi: (R.A. Mutoka) (Mrs.)

Coram: Osiemo J.

Ondeyo J.

Mr. Wandugi for appellant

Mr. Ondari for respondent

Appellant – Present

Mr. Andanje – Court Clerk

JUDGEMENT

The appellant was charged in the Chief Magistrate’s Court Nairobi with the offence of robbery with violence Contrary to Section 296 (2) of the Penal Code. He was convicted and sentenced to death. His appeal to this Court is against both conviction and sentence.

Briefly the prosecution case was that on the 31-8-94, PW1 sent PW2 and PW3 and one Kennedy now deceased to go and withdraw cash of Sh.600,000/- from the Kenya Commercial Bank, Moi Avenue for the workers’ salaries. When they reached near the gate to the factory, they were attacked and robbed of the money and in the cause of the robbery Kennedy was shot dead.

The robbers escaped in a motor vehicle registration number KAA 365Z. This vehicle had been stolen and a report made to the police station and the registration number make and colour had been circulated to all the police stations as having committed a robbery. The same day at about 7 p.m. PW5, PW6 and other police officers from anti-robbery team laid an ambush. They saw that same vehicle registration number KAA365Z parked at Wangige area. Two men came to the vehicle and one of them opened it. But before they drove away, they were confronted by the police and challenged to stop but they disobeyed the orders and started running away. The police shot one of them dead and arrested the appellant. PW5 and PW6 in their evidence stated how they laid an ambush and arrested the appellant with the motor vehicle registration No. KAA 365Z which had been used to commit a robbery. The appellant in his defence does not deny that he was arrested with the said motor vehicle registration No. KAA365Z which had been used to commit a robbery but stated that he was being given a lift by his cousin who was shot dead by the police.

It was the prosecution’s case that since the motor vehicle registration No. KAA 365Z which had been used to commit a robbery with violence was found in possession of the appellant so soon after it had been used in a robbery, a presumption arose that the appellant was the robber in the absence of a satisfactory explanation of how he had obtained possession. A jacket which was robbed from PW2 was also recovered from the appellant. There is no doubt from the evidence that the appellant was found in possession of the motor vehicle registration No. KAA 362Z which had been used in a robbery in which the deceased Kennedy was shot dead. At his trial the appellant denied involvement in the robbery. The evidence of possession is in our judgement water-tight and in the absence of an explanation by the appellant how he gained possession, the law presumes that he either stole it or at the very least he is the handler of the stolen property.

The appellant after his arrest had recorded a detailed statement under caution in which he narrated how the plan to commit the robbery was arraigned with the assistance of some employees of the company who provided them with the information as to the time the company was to collect the cash from the bank and the vehicle to be used.

Although the appellant retracted the said statement, it was however admitted after a trial within a trial and rightly so.

The learned trial magistrate found that the evidence against the appellant was overwhelming and we have no good reason to interefere with that finding.

The appeal against conviction is therefore dismissed.

We now turn to the appeal against sentence.

The appellant was convicted with an offence under section 296 (2) of the Penal Code which provides a mandatory death sentence. We agree with the learned trial magistrate that despite the mitigating factors by the appellant her hands were tied. She had no option but to pronounce the sentence as by law prescribed.

The appeal against sentence also fails.

The appeals against both conviction and sentence are dismissed.

Delivered and dated at Nairobi this 20th day of November, 1998.

J.L.A. OSIEMO

JUDGE

S.C. ONDEYO

JUDGE