[2004] KEHC 2719 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE

FRANCIS AGANDA ………………………………………………APPELLANT

V E R S U S

REPUBLIC …………………………………………………………RESPONDENT

Consolidated With

CRIMINAL APPEAL NO. 44 OF 2001

STEPHEN MALIOLO ……………………………………………..APPELLANT

V E R S U S

REPUBLIC …………………………………………………………. RESPONDENT

(From the original conviction and sentence in criminal case no. 3175 of 1999 of the Chief Magistrate’s Court – Mombasa)

J U D G M E N T

The two appellants were charged with the offence of Robbery with Violence contrary to Section 296 (2) of Penal Code. They were tried and convicted but the Trial Magistrate reduced the offence to that under Section 296 (1) Penal Code commonly referred to “simple robbery” as it does not carry a death sentence. On 27th July 2004 the appellant Stephen Maliolo withdrew his appeal.

The State through Assistant Deputy Public Prosecutor Mrs. Mwangi has served “Notice of alteration of finding and nature of sentence” under Section 354 (iii) respectively of Criminal Procedure Code. The appellants have been notified of the consequences before the hearing of this appeal. Francis Aganda appealed against both conviction and sentence. The grounds of appeal are that the Trial Magistrate erred in convicting on the evidence of identification of one witness only without any other evidence. Further that no exhibit were shown of stolen goods. Also that the Trial Magistrate erred in relying on the evidence of PW 2, PW3 and PW4 and that the defendant evidence was disregarded. Finally that the sentence is harsh and excessive.

The evidence as to what happened at the scene is given by PW1, David Otieno. He said he was at the Mombasa Beach with his friend Magdaline Gakii. This lady was not called to give evidence at all. As they were relaxing they were accosted by 3 men. One of the men produced a kitchen knife, the other two had Somali swords. All three attacked the complainant and took shs. 522/- from his pockets, Omax watch and one pocket radio. As this process was taking place two other men joined in. These two men are the appellants. At this stage the first group of three took the lady with them and the new comers remained “guarding me so l do not escape”. However the scene was interrupted by the arrival of a white woman. The complainant was taken behind a wall nearby so as not to see the beach where the white woman was. At this stage the complainant is talking about “we” “us”. Shortly after being behind the wall he heard screams. Also at this time he was being guarded by two guards while 2 others had gone towards the beach to the white lady. It is to be remembered that there were 5 men all together. Then there was a guard running to the beach, then the complainant told the guard what was happening. The two appellants and the other man ran away.

The white lady had a house by the beach. She went and pressed the alarm. K.K. guards came. Then the complainant was taken on a short ride in a patrol car to try to locate the robbers and after 5 minutes the complainant saw the appellant and the vehicle stopped and the appellant was arrested. The complainant said :-

“I knew them very well l had been with them for 15 minutes. They had appearance of Luos l even spoke to them Luo language”.

The appellant was put in the vehicle. When he was taken to the white lady’s house she declined to press charges. It was after this that he was searched and found to be armed with Somali swords. The stolen goods were not recovered.

The appellant, Francis Aganda told an unbelievable story. He said he was at Reef Hotel where he met the complainant seated with appellants colleagues. He had a discussion with complainant whereby the complainant told him how he had been robbed by 2 persons who ran away. This is very contrary to the real position. From evidence the complainant would not have been sitting in a bar at that time he was with KK guards. The complainant had said that he was able to identify Luo features and that he had been with the robbers for 15 minutes. Surely if he was so well known to this appellant he would have said so.

On the issue of the identification by one witness it is clear there was sufficient light at the scene. There was also movement from here to there but for a 15minutes period the complainant was in close proximity of the appellant who was “guarding” him. He had sufficient opportunity to know his appearance sufficiently to remember him thereafter. And it was only a short period of time before the arrest. Appellant was therefore among the 5 men that attacked the complainant. We therefore find that the conviction by the trial Magistrate was on safe evidence.

At this juncture it remains to consider the request by the State that this appellate court do make alterations of finding and nature of sentence from that of 10 years imprisonment and 2 strokes of the cane and 5 years police supervision to that of death penalty under Section 354(iii) against appellant Aganda. We have perused the Criminal Procedure Code and we do not find Section 354 (iii). In a criminal case the court has power to act only on specific provisions.

In view of the above no orders can be made under the said notice. The result therefore is that we find the Trial Magistrate was correct in convicting on the evidence before her. We do not therefore interfere with the conviction. Regarding sentence the Trial Magistrate is best placed to assess punishment. However Corporal punishment has since been outlawed. On the imprisonment sentence we find 10 years is reasonable in the circumstances and we decline to interfere. The upshot is that the appeal is dismissed.

Dated this 18 day of November, 2004.

J.W MWERA

JUDGE

J. KHAMINWA

JUDGE