[2017] KEHC 2630 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO 44 OF 2017

[From the original conviction and sentence dated 11/11/2014 in Criminal Case No. 513 of 2014 in the Senior Principal Magistrate’s court at Narok, Republic v. Elijah Wambugu Ndegwa]

ELIJAH WAMBUGU NDEGWA ……………………APPELLANT

VERSUS

REPUBLIC …………………………………………RESPONDENT

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of six (6) years imprisonment in respect of robbery with violence contrary to section 296 (2) of the Penal Code (Cap. 63) Laws of Kenya.

2. The state has supported both the conviction and sentence.

3. The appellant was convicted and sentenced on the direct evidence of the complainant (Pw 1), and her daughter (PW 2), amongst other witnesses.

4. The defence of the appellant through his unsworn statement was a bare denial. The appellant has raised three grounds of appeal in his amended petition of appeal to this court.

5. In ground 1 the appellant has faulted the trial court both in law and fact for convicting him on the evidence of visual identification that was not free from error or mistake. In this regard, the evidence of Grace Kariuki (PW1) who was the complainant, was that on 22/2/2014 at around 6. 30 pm, the appellant jumped over the fence into her compound.

6. The complainant further testified that it was drizzling at that time. She ran into her house followed by the appellant, who was armed with a knife. The appellant held the knife across her neck and threatened to slit her neck if she screamed. He ordered her to lie down and demanded for money. The appellant then led her to her bedroom, wherein the appellant ordered the complainant’s daughter to get her mother’s purse.

7. The complainant’s daughter (PW 2) got the purse, which had Shs.7,500/-. The appellant then took this money.

8. Furthermore, the complainant testified that the appellant was not masked and was in her house for about 30 minutes. Her further testimony is that three weeks later after the commission of this offence, the complainant saw the appellant seated outside Co-operative Bank building in Narok town.

9. As a result, she informed the police officers at the bank, who in turn called other police officers who proceeded to arrest the appellant. The complainant also testified that she could identify the appellant by face and that she could recognize him, if she saw him.

10. The evidence of the complainant is supported by that of her minor daughter (PW 2), V N. She too testified that the appellant tied her hands with a rope and thereafter the appellant left their house after taking shs.7,500/=. It is important to point out that PW2 was allowed to give sworn evidence, after being subjected to a voire direexamination.

11. The appellant was arrested by APC Nyamuaga Peter (PW 3) of Narok North police district headquarters. He was pointed out by the complainant PW 3 then took the appellant to Narok Police Station where he handed him over to No. 62422 PC Hussein Mohammed (PW 4). The complainant told PW4 that the appellant attacked her with a Maasai sword. The complainant further told him that her house had light. The appellant was then charged with this offence.

12. PW 4 further testified that he never conducted a police identification parade because “there was no need.”

13. After considering the submissions of the appellant and the respondent and the evidence in respect of identification, I find that the circumstances favoured the identification of the appellant. The appellant was not masked and was therefore easily identified by face. Furthermore, the appellant was with the complainant for 30 minutes. Additionally, I also find that it was not dark since the time was about 6. 30 p.m. In the circumstances, I find that the appellant was positively identified as the robber by the complainant and her daughter. I therefore find that ground 1 is lacking in merit and is hereby dismissed.

14. In ground 2 the appellant has faulted the trial court both in law and fact in failing to find that there were contradictions in the evidence of the prosecution witnesses. In this regard, the appellant submitted that there was a contradiction in regard to the date of his arrest. In this regard the evidence of the arresting police officer, APC Nyamuaga Peter (PW 3), is that he arrested the appellant on 31/3/2014 at 9. 00 a.m. at Co-operative Bank Building in Narok town.

15. The arrest date of 31/3/2014 by PW 3 is supported by that of No. 61422 PC Hussein Mohammed (PW 4). PW 4 testified that the appellant was taken to Narok police station on 31/3/2014 by two AP police officers, who were in the company of the complainant.

16. In the circumstances, I find that the appellant was arrested on 31/3/2014 and not on 16/3/2014. I further find that this contradiction is not a material one and does not affect the conviction.

17. In ground 3, the appellant has faulted the trial court both in law and fact for dismissing his plausible defence. I find that the defence of the appellant was a bare denial. I further find that his visual identification at the scene of crime was free from error or mistake. I therefore find that his defence was rightly dismissed since it was not plausible.

18. This is a first appeal. As a first appeal court according to Okeno v. R (1972) EA 32, I am required to reassess the entire evidence tendered at trial and make my own findings of fact. I have done so and I find that the appellant was convicted on sound evidence.

19. The trial court did not commit any error or law or fact in sentencing the appellant. The sentence of six years imprisonment is merited.

20. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 12th day of October, 2017 in the presence of the appellant and Ms Nyaroita for the Respondent.

J. M. Bwonwonga

Judge

12/10/2017