[2016] KEHC 4067 (KLR)
The conviction was quashed because the evidence presented by the prosecution was riddled with contradictions and credibility issues, particularly regarding the complainant's identification of the assailants and the consistency of his statements to the police and in court. The appellate court found it unsafe to rely...
Source-derived case information.
- Citation
- [2016] KEHC 4067 (KLR)
- Parties
- Appellant: Francis Kamande Ngugi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 57 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- KW Kiarie
- Legal Topics
- Robbery With Violence, Credibility of Witnesses, Evidence Evaluation, Appeal Against Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kamande Ngugi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant was supported by sufficient and credible evidence.
- 2 Whether the trial court erred in relying on the complainant's testimony despite contradictions and credibility concerns.
Ratio Decidendi
The conviction was quashed because the evidence presented by the prosecution was riddled with contradictions and credibility issues, particularly regarding the complainant's identification of the assailants and the consistency of his statements to the police and in court. The appellate court found it unsafe to rely on the complainant's testimony, as it did not meet the threshold for credible and reliable evidence required for a conviction in a criminal case. The state conceded that the evidence was insufficient, and the appellate court agreed, holding that the conviction could not stand and the sentence must be set aside.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG'A
CRIMINAL APPEAL NO. 57 OF 2014
FRANCIS KAMANDE NGUGI ............................... APPELLANT
VERSUS
REPUBLIC ……………………………..................... RESPONDENT
(From the original conviction and sentence in criminal case No.813 of 2013 of the Senior Principal Magistrate’s Court at Kigumo by Hon. D.O Orimba – Senior Principal Magistrate)
JUDGMENT
The appellant, FRANCIS KAMANDE NGUGI, was charged with the offence of robbery contrary to section 296 (2) of the Penal Code.
The particulars of the offence were that on 7th July 2013 at Kianjiruini village, Murang'a South District of Murang'a County, jointly with another not before court, robbed JOSEPH NGUGI KIMANI of items valued at Kshs 8,200 and at the time of the said robbery assaulted the saidJOSEPH NGUGI KIMANI.
He was sentenced to suffer death.
He now appeals against both conviction and sentence.
The appellant was in person. He raised seven grounds of appeal which can be summarized in one ground as follows:
1. That the learned magistrate erred in law and in fact in convicting the appellant without sufficient evidence to support the charge.
The state conceded to the appeal through Mr. Njeru, the learned counsel.
Briefly the facts of the prosecution case are as follows:
At about 2 pm the complainant was going home from church. Near his gate he found the appellant who was in company of another. The appellant grabbed him and demanded the money he had received after selling his land. The two proceeded to rob him. He raised an alarm and the duo ran away.
In his defence the appellant denied any involvement in the offence.
This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO VS. REPUBLIC 1972 EA 32.
My perusal of the record confirms that the learned state counsel was right in conceding the appeal. There are glaring contradictions that possibly point to a case of assault, that the complainant exaggerated for whatever reason. In the file there is a chit attached to the p3 form which was addressed to the M.O.H Maragua from the office of the O.C.S Maragua. The chit is to the effect that the complainant was assaulted by people not known to him well. The evidence on record is to the effect that these two were neighbours. Why did he then tell the police that his assailants were not well known to him?
Joseph Ngugi Kimani (PW1)testified that he was attacked and robbed by the appellant and another person. This is not what he reported to Moses Muchoki (PW2). Muchoki testified that the complainant told him that he was robbed by the appellant. Lucy Wambugu (PW3) on her part said after she was attracted to the scene by screams, she saw the appellant beating the complainant. She did not testify to have seen anybody else at the scene.
The evidence by the complainant and the key witnesses raise an issue of credibility. The court of appeal in the case of NDUNGU KIMANYI Vs. REPUBLIC [1979] KLR 283, MADAN, MILLER and POTTER JJA held:
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
This description by the court of appeal fits well in the portrait the complainant painted of himself. It was unsafe for the learned trial magistrate to rely on his evidence. There was no sufficient evidence to convict the appellant. I therefore quash the conviction and set aside the sentence. The appellant is set at liberty unless if otherwise lawfully held.
DATED at MURANG'A this 20th day of July 2016
KIARIE WAWERU KIARIE
JUDGE