[2001] KEHC 887 (KLR)
The court found that the identification of the appellant was positive and free from the possibility of error. The offence occurred in broad daylight, and the appellant was apprehended at the scene after a chase by a police officer who never lost sight of him. The evidence of the complainant was corroborated by other...
Source-derived case information.
- Citation
- [2001] KEHC 887 (KLR)
- Parties
- Appellant: Damwena Hassan Machea; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 96 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Robbery With Violence, Identification Evidence, Appeal Against Conviction, Appeal Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damwena Hassan Machea
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly identified as one of the robbers during the incident.
- 2 Whether the conviction for robbery with violence was safe based on the evidence presented.
- 3 Whether the appellant's defence was properly considered by the trial court.
Ratio Decidendi
The court found that the identification of the appellant was positive and free from the possibility of error. The offence occurred in broad daylight, and the appellant was apprehended at the scene after a chase by a police officer who never lost sight of him. The evidence of the complainant was corroborated by other witnesses. The appellant's defence of being arrested at his kiosk after refusing to pay a bribe was rejected as implausible. The court concluded that the conviction was safe and dismissed the appeal against both conviction and sentence.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of the appellant are upheld.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE
CRIMINAL APPEAL NO.96 OF 1999
(From Original Conviction and Sentence in Criminal Case No.4369 of 1999 of the Senior Resident Magistrate’s Court at Mombasa – L. Achode, Mrs. – S.R.M.)
DAMWENA HASSAN MACHEA………………………………..………APPELLANT
=V E R S U S=
REPUBLIC………………………………………………………………..RESPONDENT
J U D G M E N T
The Appellant was charged and convicted with the offence of Robbery with Violence and sentenced to death. His appeal to this court is against both conviction and sentence.
Briefly the prosecution case was that on the 18th day of December, 1998 at about 11 a.m. along Moi Avenue in Mombasa while PW.1 was walking in company of PW.2 and PW.3 who were a few meters ahead of him, he was attacked by the Appellant who was in company of two other robbers and was robbed of cash shs.61,000/-. He screamed and police officers who were on patrol responded and the Appellant was chased from the scene of the robbery and arrested a few meters away. PW.1 in evidence said that it was the Appellant who held him by the neck while armed with a knife. PW.2 and PW.3 screamed. PW.4 a Police Officer who was on patrol rushed to the scene and as the Appellant tried to escape he chased him with the assistance of the members of the public and they managed to arrest the Appellant. The other two assailants who were with the Appellant managed to escape.
The evidence of the complainant is corroborated by that of PW.2 and PW.3 as well as PW.4. PW.2 and PW.3 were walking ahead of the complainant when the complainant was attacked and raised an alarm. They turned and saw the Appellant and two others attacking the complainant and the attack was too fast. PW.4 a Police Officer who heard the scream a few meters away in his evidence stated that he saw the Appellant holding the complainant by the neck. He chased the Appellant while members of the public who had also witnessed the robbery pelted stones at the Appellant and he managed to arrest him. He said he never lost sight of the Appellant from the scene of the robbery to the time he was arrested.
The Appellant’s defence that on the material date Police arrested him at his kiosk after he had refused to give them a bribery of shs.2000/- which they had asked for was rejected by the Trial Magistrate and rightly so. The Appellant was politively identified by PW.1, PW.2, PW.3 and PW.4 and the offence was committed during broad day-light and PW.4 never lost sight of the Appellant from the scene of the robbery to the time he arrested the Appellant.
The conclusion we have come to is that the identification evidence upon which the Appellant’s conviction was based was free from the possibility of error. The end result is that the conviction of the Appellant was safe and this appeal must fail and we dismiss the Appellant’s appeal.
Order accordingly.
Dated and delivered at Mombasa this 27th day of September, 2001.
J.L.A. OSIEMO
J U D G E
J.N. KHAMINWA
COMMISSIONER OF ASSIZE