[2009] KEHC 432 (KLR)
The court found that there was no evidence to support the conviction for capital robbery as the complainant did not identify the appellant as one of the robbers, and there was no evidence of threats or violence. However, the appellant was found in possession of the stolen Gold Star TV and Aftron Video Deck within 24...
Source-derived case information.
- Citation
- [2009] KEHC 432 (KLR)
- Parties
- Appellant: Jackson Siko Oroni; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 32 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction for robbery quashed; conviction for burglary and stealing substituted; death sentence set aside; six years imprisonment imposed
- Legal Topics
- Robbery With Violence, Recent Possession, Burglary, Stealing, Evidence Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Siko Oroni
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for capital robbery was supported by evidence.
- 2 Whether the doctrine of recent possession applied to the appellant.
- 3 Whether the appellant was properly identified as one of the robbers.
Ratio Decidendi
The court found that there was no evidence to support the conviction for capital robbery as the complainant did not identify the appellant as one of the robbers, and there was no evidence of threats or violence. However, the appellant was found in possession of the stolen Gold Star TV and Aftron Video Deck within 24 hours of the theft, and his explanation for possession was not credible. Applying the doctrine of recent possession, the court held that the appellant was guilty of burglary and stealing, not robbery with violence. The convictions for counts two and three were quashed due to lack of evidence, and the conviction for robbery in count one was substituted with convictions for...
Court Disposition
conviction for robbery quashed; conviction for burglary and stealing substituted; death sentence set aside; six years imprisonment imposed
Orders
- Convictions for counts two and three quashed.
- Conviction for robbery in count one quashed and substituted with convictions for burglary and stealing.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 32 of 2008
JACKSON SIKO ORONI……………………….APPELLANT
VERSUS
REPUBLIC……………………………………...RESPONDENT
JUDGMENT
JACKSON SIKO ORONI, the appellant was with another charged with three counts of capital robbery. In the alternative each was also charged with one count of being in possession of suspected stolen property contrary to Section 323 of the Penal Code and handling stolen property contrary to Section 323(2) of thePenal Code. The other accused person was acquitted of all the charges but the appellant was convicted on the three counts of capital robbery and given the mandatory death sentence. He has appealed against both the conviction and sentence.
The three capital robbery charges were that on 11th June 2005 at Free Area Estate in Nakuru Town within Rift Valley Province the appellant and other accused person robbed John Mutua of a Gold Star TV, Aftron video deck and other items all valued at Kshs.22,500/- and that at or immediately before or immediately after the time of such robbery they threatened to use personal violence on the said John Mutua. In counts two and three it was alleged that at the same date in the same estate they robbed Grace Nduta Ndungu and James Kariuki of various household items to the tune of Kshs.30,000/- and Kshs.8,650/- respectively. Grace Nduta the complainant in count two did not identify any of her robbers and none of her pieces of property was found with the appellant. James Kariuki the complainant in count three did not testify. There was therefore no evidence at all for the conviction of the appellant on those counts. We accordingly quash those convictions.
On count one the complainant, John Mutua, PW1, testified that the robbers broke into his house but they did not go into his bedroom where he was with his wife. They only took various household items from the seating room and went away. In the circumstances we find that the allegation that the robbers threatened to use violence on PW1 has therefore no basis. Consequently the robbery charge and/or conviction has also no basis.
As we have said, the robbers did not go into PW1’s bedroom. He therefore did not see any of the robbers and did not therefore identify the appellant in this case as one of them. The appellant’s conviction is based on his being found in possession of the Gold Star TV and the Aftron Video Deck which PW1 positively identified as his. Although none of the people who arrested the appellant with the Gold Star TV testified, in his defence the appellant admitted that he was found with that TV and his explanation thereof was that he had carried it on his bike for a customer who was ahead of him on another bike. When those people stopped them the customer ran away and that he himself took the TV to the police station and later took the police to the customer’s house. The police found PW1’s Video Deck in appellant’s house. The appellant never explained how he came to be in possession of the Video Deck. In the circumstances we reject even his explanation that he had carried the TV for a customer who disappeared. We are satisfied that the appellant was found in possession of PW1’s Gold Star TV and Video Deck within a time span of about 24 hours and having failed to explain on how came to their possession on the doctrine of recent possession we agree with the trial magistrate that he stole them.
We, however, do not agree with the trial magistrate that the appellant robbed PW1 of those items. As we have stated PW1 remained with his wife in their bedroom when the items were stolen from the seating room. There is no evidence of any threats having been given. In the circumstances we find that the robbery charge cannot hold. We therefore quash the appellant’s conviction of the robbery charge and set aside the death sentence thereon and substitute therefor a conviction of burglary contrary to Section 304(2)and stealing contrary toSection 279(b)of the Penal Code. The appellant having been incarcerated since 12th June 2005 and that the appellant has family responsibilities we sentence him to six years imprisonment on each limb from the date of his conviction. The sentences shall run concurrently.
DATED and delivered this 26th day of November, 2009.
D. K. MARAGA
JUDGE.
W. OUKO
JUDGE.