DAVID MUNYOKI KATUTU & KIMANGI KITUO vs REPUBLIC [2003] KEHC 331 (KLR)
- Citation
- [2003] KEHC 331 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- A Mbogholi-Msagha, RM Mutitu
- Case number
- ? 505 of ??
- Language
- English
More details
- Court
- High Court
- Panel
- A Mbogholi-Msagha, RM Mutitu
- Case number
- ? 505 of ??
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the evidence adduced by the prosecution, particularly from eyewitnesses who knew the appellants and the recovery of stolen items from the first appellant, was sufficient to sustain the conviction for robbery with violence. The identification was not challenged, and the circumstances of the robbery supported the trial court's findings. However, on the second count relating to possession of cannabis sativa by the second appellant, the court held that the absence of corroborative evidence from a government analyst meant the conviction could not stand. The evidence of PW7 alone was insufficient to prove the substance was cannabis sativa beyond reasonable doubt. Consequently, the appeal was dismissed on the robbery with violence charge but allowed on the narcotics charge for the second appellant.
Court disposition
Appeal dismissed on robbery with violence charge; appeal allowed on narcotics charge for second appellant.
Orders
- The appeal against conviction and sentence for robbery with violence under section 296(2) of the Penal Code is dismissed.
- The conviction and sentence on count two (possession of cannabis sativa) against the second appellant are quashed and set aside.
02
Material facts
Parties
David Munyoki Katutu
AppellantKimangi Kituo
AppellantRepublic
Respondent03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the evidence adduced was sufficient to sustain a conviction for robbery with violence under section 296(2) of the Penal Code.
- 02
Whether the trial magistrate erred in failing to consider the defences of the appellants.
- 03
Whether the conviction and sentence on count two for possession of cannabis sativa was supported by adequate evidence.
Party arguments
- Applicant
- The appellants argued that the trial magistrate erred in relying on inadequate evidence to establish their guilt and failed to consider their defences. They challenged the sufficiency of the identification evidence and the lack of corroboration regarding the alleged possession of cannabis sativa by the second appellant.
- Respondent
- The respondent, through the state counsel, maintained that the conviction and sentence were based on sufficient and cogent evidence. The prosecution relied on eyewitness testimony, recovery of stolen items, and the circumstances of the arrest to support the convictions.
05
Court’s reasoning
Legal principles
- 01
Section 296(2), Penal Code (Cap 63)
A conviction for robbery with violence under section 296(2) of the Penal Code requires proof of violence or threat thereof, and identification of the accused beyond reasonable doubt.
- 02
Narcotic Drugs and Psychotropic Substances (Control) Act; general evidentiary principles
Possession of narcotic drugs must be proved by corroborated evidence, including expert analysis confirming the nature of the substance.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the evidence adduced by the prosecution, particularly from eyewitnesses who knew the appellants and the recovery of stolen items from the first appellant, was sufficient to sustain the conviction for robbery with violence. The identification was not challenged, and the circumstances of the robbery supported the trial court's findings. However, on the second count relating to possession of cannabis sativa by the second appellant, the court held that the absence of corroborative evidence from a government analyst meant the conviction could not stand. The evidence of PW7 alone was insufficient to prove the substance was cannabis sativa beyond reasonable doubt. Consequently, the appeal was dismissed on the robbery with violence charge but allowed on the narcotics charge for the second appellant.
Obiter and limits
- The court noted that the robbery took place in broad daylight and the eyewitnesses knew the appellants, strengthening the identification evidence.
- The absence of a government analyst's report was fatal to the prosecution's case on the narcotics charge.
Court disposition
Appeal dismissed on robbery with violence charge; appeal allowed on narcotics charge for second appellant.
- The appeal against conviction and sentence for robbery with violence under section 296(2) of the Penal Code is dismissed.
- The conviction and sentence on count two (possession of cannabis sativa) against the second appellant are quashed and set aside.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 505 OF 2000
FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE
NO. 1545 OF 1999 OF THE PM’S COURT AT KITUI – NJERU ITHIGA
ESQ. PM KITUI
DAVID MUNYOKI KATUTU &
KIMANGI KITUO ……………………………………………………….APPELLANTS
VERSUS
REPUBLIC …………………………………………………………………… RESPONDENT
JUDGMENT
The appellants were convicted and sentenced to hang in a case of robbery with violence contrary to section 296(2) of the Penal Code by Mr. Njeru Ithiga the Principal Magistrate Kitui on the 10th May 2000.
The two appellants relied on two main grounds of appeal namely – that the trial magistrate erred in relying on evidence which was not adequate to establish the guilt of the appellants and that the appellants defences were not considered by the trail magistrate.
We have carefully considered the evidence adduced by the prosecution witnesses more so PW1 and PW2. We have noted that the robber took place in broad daylight and that the two witnesses knew the two appellant’s according to the evidence on record.
In cross-examination, it is noted that the two appellants did not deny being known to the two eyewitnesses. All the stolen items were recovered form the 1st appellant by PW4 and PW5 according to the evidence on record. The fact that the complainant was injured during the robbery was confirmed by PW6 and PW8 when the 1st appellant was arrested. He was found with a knife, which fitted into a sheath which was retained by PW1 during the robbery and which PW1 had given to the police.
We are in agreement with the learned state counsel that the appellants were convicted and sentenced to death by the learned trial magistrate while acting an sufficient and congent evidence. We do not find any sufficient grounds to enable us to interfere with the findings of the learned trial magistrate herein.
We therefore dismiss this appeal in its entirety in so far as the charge under Section 296(2) of the Penal Code is concerned.
On count two which relates to the second appellant the conviction should be quashed and the sentence set aside since no evidence from the Government analyst was adduced to prove that the substance recorded by PW7 was bhang. Evidence of PW7 to the effect that the substance recovered on the second appellant was cannabis sativa was not corroborated by any other independent evidence.
In conclusion we allow the 2nd appellants appeal on court two and set aside his sentence of three years imprisonment. Order according.
Delivered this 13th day of August, 2003.
M. MBOGHOLI
JUDGE
R.M MUTITU
JUDGE
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