[2001] KEHC 250 (KLR)
The court found that both the complainant and his wife positively identified the appellant during the robbery using torch light, and their evidence was strong and cogent. The trial magistrate properly evaluated the evidence and reached the correct conclusion regarding the appellant's participation in the robbery....
Source-derived case information.
- Citation
- [2001] KEHC 250 (KLR)
- Parties
- Appellant: George Iwa Mariano; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 61 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Robbery With Violence, Identification Evidence, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Iwa Mariano
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was positively identified as one of the robbers during the incident.
- 2 Whether the conviction under section 296(1) of the Penal Code was proper given the circumstances.
- 3 Whether the sentence imposed was harsh or lenient in the circumstances.
Ratio Decidendi
The court found that both the complainant and his wife positively identified the appellant during the robbery using torch light, and their evidence was strong and cogent. The trial magistrate properly evaluated the evidence and reached the correct conclusion regarding the appellant's participation in the robbery. Although the offence could have attracted a harsher sentence under section 296(2) of the Penal Code, the absence of a cross-appeal by the State meant the appellant would serve the sentence as imposed. The court held that the conviction was proper and the sentence was not harsh, but rather lenient given the circumstances.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appellant shall serve the sentence meted out by the lower court.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APP 61 OF 2000
GEORGE IWA MARIANO ::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
J U D G E M E N T
20 The appellant along with another were charged under S. 296(2) Penal Code in the lower court at Kajiado in that these two with others not before court jointly and armed with dangerous weapons i.e. a pistol they robbed David Mutua Githiga of a motor vehicle plus several other items valued at over Sh.251,000/= and during or after the robbery they threatened to use actual violence on this Githiga on 16. 1.99 at Kitengela Trading Centre Kajiado. After trial the appellant was convicted under S. 296 (1) Penal Code and given 36 months imprisonment, 1 stroke of the cane and five years police supervision on release with effect from 3. 5.2000. He appealed claiming that the complainant, a neighbour was prompted by a grudge and animosity to lay his complaint due to bad relationship between the two; that he was not positively identified since the alleged offence took place at night and that the sentence was harsh in the circumstances. The Learned State Counsel supported the conviction and sentence. On its own reviewing of the lower court file this court is satisfied that the 10 Learned Trial Magistrate who properly and carefully focused on the night in issue came to a proper and right conclusion that he indeed took part in the robbery against the complainant (P.W.1).
When P.W.1’s residence was raided that night he got up to confront the thugs. He hit his torch and shone on the appellant. He recognized him. His wife Victoria (P.W.2) who had followed P.W.1 closely behind too recognized the appellant, George, in that torch light. They were ordered to go back to sleep. Apparently they were ordered to sleep. They were robbed. That was evidence strong and cogent to base on a conviction. The sentence was even lenient considering that the appellant was in company of other thugs when they raided P.W.1’s house and robbed him. He ought to have been dealt with under S. 296(2) Penal Code (see JOHN NDUNGU VS. R. CR.A 115/95 MBA (CA). But that the State did not cross appeal on this point, the appellant will serve the sentence meted out. Judgement accordingly.
Delivered on 18th June 2001.
J. W. MWERA
JUDGE