[2004] KEHC 1406 (KLR)
The court found that the evidence against the appellant was entirely circumstantial and that there was no direct identification of the appellant at the scene of the crime. The alleged explosive device recovered was not conclusively linked to the offence, as it was neither examined by an expert nor clearly...
Source-derived case information.
- Citation
- [2004] KEHC 1406 (KLR)
- Parties
- Appellant: Alex Mutua Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 166 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed, sentence set aside, appellant to be set at liberty unless otherwise lawfully held
- Legal Topics
- Attempted Robbery With Violence, Circumstantial Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Mutua Mutisya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for attempted robbery with violence was supported by sufficient evidence.
- 2 Whether the circumstantial evidence adduced established the appellant's guilt beyond reasonable doubt.
- 3 Whether the recovery of an alleged explosive device linked the appellant to the offence.
Ratio Decidendi
The court found that the evidence against the appellant was entirely circumstantial and that there was no direct identification of the appellant at the scene of the crime. The alleged explosive device recovered was not conclusively linked to the offence, as it was neither examined by an expert nor clearly established to be the device used during the incident. The court held that the prosecution failed to establish a nexus between the appellant and the offence, and that the circumstantial evidence did not meet the threshold required to justify a conviction. Consequently, the conviction was deemed unsafe and was quashed, with the sentence set aside.
Court Disposition
conviction quashed, sentence set aside, appellant to be set at liberty unless otherwise lawfully held
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYAIN
THE HIGHT COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO.166OF 2003
(From the original suit no 2119 of 2001 of senior principal magistrate'scourt
at machakos)
ALEX MUTUA MUTISYA ……………………………………………APPELLANT
VERSUS
REPUBLIC…………………………………………….………………..RESPONDENT
J U D G E M E N T
The appellant Alex Mutua was charged in CRC 2119 of 2001 before Senior Principal Magistrate’s court Machakos. He was jointly charged with one Mutinda Munyao for the offence of attempted robbery with violence contrary to section 297 (2) of the Penal Code.
The 1st accused in the lower court faced another charge of possession of public stores contrary to section 324(2) of the penal code. After the magistrate heard the case, he convicted both appellant and 1st accused for the first charge and they were sentenced to suffer death as per law provided. The appellant who was the 2nd accused in that case is dissatisfied with the said conviction and sentence and filed an appeal. His petition of appeal contains five grounds of appeal which can be summed up as there not being sufficient evidence upon which the appellant was convicted. Briefly stated the case in the lower court was that PW1 and PW2 were asleep in their employer’s house at Kavumbu Village, Machakos District when at about 2. 00a.m. they heard dogs barking. PW1 went to the toilet while armed with a bow and arrow. He saw people flashing torches when he was in the toilet. PW1 heard an explosion. Meanwhile PW2 remained in the house and he said that the people entered the house and opened fire.The people enquired from PW2 the whereabouts of PW1 and PW2 told them PW1 was in the toilet. As the people moved to the toilet PW1 shot one with the bow and arrow and the people fled. The next morning at 6. 00 a.m. they started following the direction of the trail of blood from the injured person. They found the arrow which was blood stained first, then later found a blood stained sweater which PW5 who was with PW1 and 2 identified as that of Mutinda. They went to report at Masii police post when they learnt that a person who was injured was at the chief’s camp. The witnesses found the accused 1 Mutinda at chiefs camp who had a bleeding wound. He had worn another sweater and shirt which were all blood stained. Mutinda claimed to have been with the appellant.PW1, 3, 6 went to the appellant’s house where he was sleeping. Nothing was recovered but appellant led to the recovery of an explosive device which was hidden underground and he dug it out. It was produced in court as exhibit 5. The appellant in his defence said he was sick in bed on the date of his arrest when Assistant chief and Police Corporal found him in his house, His house was searched and nothing found.
The evidence against the appellant was circumstantial. Pw1 and 2 did not see or identify any of the assailants. It is after the appellant’s arrest that he allegedly led to the recovery of an explosive device. It was not clear from the prosecution witnesses whether the device was found in the appellant’s house or in a bush outside his house.
It was the prosecution evidence that something exploded or was fired at the house where PW1 and 2 were attacked. The court was not told what it was. Whatever device that was allegedly recovered from the appellant was produced in court as exhibit no. 5 but there is no nexus between that device and what was fired or what exploded at the house were PW1 and 2 were attacked. The device was never examined by an expert to confirm whether it was an explosive or not. In considering circumstantial evidence the court of appeal had this to say in the case of JAMES MWANGI VERSUS REPUBLIC 1983 KLR 327:
“In a case depending on circumstantial evidence, in order to justify the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused, the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of guilt.”
In the present case we find that there is no link between the alleged offence and the appellant. After carefully re-evaluating the evidence adduced we find that the offence was not proved beyond any doubt and the conviction was unsafe and should not be allowed to stand. We accordingly quash the conviction and set aside the sentence. We order that the appellant be set at liberty forthwith unless he is otherwise lawfully held.
Dated, read and delivered at Machakos this 15th day of July 2004.
J. LESIIT
JUDGE
R. WENDOH
JUDGE