[2017] KEHC 456 (KLR)
The court found that the appellant was positively identified by recognition, as he was a neighbour and cousin to the complainant, and the incident occurred in broad daylight. The evidence of PW1 was corroborated by PW2, who witnessed the appellant armed with a panga and threatening violence. The court was satisfied...
Source-derived case information.
- Citation
- [2017] KEHC 456 (KLR)
- Parties
- Appellant: Daniel Nduati Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 144 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- CB Nagillah, EM Ngugi
- Legal Topics
- Robbery With Violence, Identification Evidence, Burden of Proof, Appellate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Nduati Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction based on the sole identification evidence of PW1 was safe.
- 2 Whether the prosecution proved the offence of robbery with violence beyond reasonable doubt.
- 3 Whether the trial court erred in convicting the appellant without sufficient corroboration.
Ratio Decidendi
The court found that the appellant was positively identified by recognition, as he was a neighbour and cousin to the complainant, and the incident occurred in broad daylight. The evidence of PW1 was corroborated by PW2, who witnessed the appellant armed with a panga and threatening violence. The court was satisfied that all elements of robbery with violence were proved beyond reasonable doubt. The trial court's reliance on recognition evidence was justified, and the conviction and sentence were upheld.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence on count I are upheld.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL APPEAL NO: 144 OF 2016
(From Original Conviction and Sentence
inCriminal CaseNo: 3474 of 2009 of the
Chief'sMagistrate’s Court at Thika.)
DANIEL NDUATI MWANGI.....................APPELLANT
-V E R S U S-
REPUBLIC.............................................RESPONDENT
J U D G M E N T
1. This is a judgment in a Criminal Appeal No: 144 of 2016. The appellant, DANIEL NDUATI MWANGI, was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, along with JAMES WAINAINA as 2nd accused.
Particulars thereof were that on 20th day of July, 2009 at Mihango sub-location in Muranga South District within Central province, jointly with others not before this court while armed, with pangas and rungus robbed STEPHEN KAMANDE MUTHEU cash of Ksh. 3000/= and at the time of such robbery used actual violence to the said STEPHEN KAMANDE MUTHEU.
2. The appellant have denied the offence was duly tried and subsequently found guilty, convicted and duly sentenced to death. The 2nd accused was acquitted.
3. The appellant being aggrieved and dissatisfied has appealed against both the conviction and the sentence. He is prosecuting his own appeal.
His grounds of appeal are summarized as follows:
1. The trial court relied on sole identification evidence of PW1 without warning himself of the dangers of convicting on such evidence.
2. That there was no corroboration of the evidence of PW1.
4. The respondent through Madam Ngalyuka opposes this appeal. She submits as follows:
1. That the offence was proved beyond reasonable doubt.
2. The complainant PW1 in his testimony, it is clear that the circumstances were indeed for positive identification i.e. it was 5p.m. and the appellant was known to the witness. This was a question for recognition. This identification is free from error.
3. The ingredients of robbery with violence states that the appellant was armed with a panga. PW2 corroborates the evidence of PW1. PW2 was a complainant in Count II assault on PW2 confirms he met with the appellant both threatened and the appellant was armed with a panga.
4. The offence is therefore proved beyond reasonable doubt on PW1& PW2. The conviction is therefore safe.
5. We urge the court to uphold the count I. As count II is a suspended sentence.
5. FIRST APPEAL
This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.
6. TESTIMONIES: ANALYSIS
On 20/07/2009, PW1was accosted by the appellant and along with JAMES WAINAINA. The appellant forcefully took Ksh. 3000/= from his pocket after strangling him, while the 2nd accused held his legs. PW1knew the appellant very well, as it was 5p.m. day time, and the appellant being his neighbour. They were armed with a panga. Later on PW2 – PAUL MWANGI - the brother of PW1, came to his rescue. They met the appellant and when PW2confronted them, the appellant removed a panga from his shirt, threatened to cut his neck. The second accused hit PW2 with as stone.
PW4– The Doctor – confirmed injuries suffered by PW2, as blunt injuries.
7. I satisfied the appellant was positively identified by recognition. The appellant was their neighbour and a cousin.
The elements of robbery with violence offence were present and proved beyond reasonable doubt.
8. FINDINGS
For these reasons, the appeal is hereby dismissed. The conviction and sentence on count I be and is hereby upheld.
Right of Appeal accorded – 14 days.
JUDGMENT WRITTEN AND SIGNED BY:
C. B. NAGILLAH
JUDGE
JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY:
THIS 3RD DAY OF OCTOBER 2017
JOEL NGUGI
JUDGE
In the Presence of:
....................................the Appellant
................................for Respondent
.........................for Court Assistant