[1999] KEHC 140 (KLR)
The court found that the evidence against the appellant was overwhelming, particularly the identification by P.W.2 in broad daylight, which minimized the risk of mistaken identity. The appellant's alibi was considered but dismissed in light of the strong prosecution evidence. The court held that the conviction on...
Source-derived case information.
- Citation
- [1999] KEHC 140 (KLR)
- Parties
- Appellant: John Kuria Gatembu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1110 of 1998
- Procedural Posture
- Criminal Appeal / Appeal Against Conviction and Sentence
- Outcome
- Appeal dismissed in respect of counts 1 and 2; appeal allowed in respect of count 3.
- Judges
- JL Osiemo
- Legal Topics
- Robbery With Violence, Identification Evidence, Alibi Defence, Sentencing, Appeals Against Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kuria Gatembu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the conviction of the appellant for robbery with violence and theft of a motor vehicle was supported by the evidence.
- 2 Whether the identification of the appellant was free from the possibility of error.
- 3 Whether the appellant's alibi defence was properly considered by the trial court.
Ratio Decidendi
The court found that the evidence against the appellant was overwhelming, particularly the identification by P.W.2 in broad daylight, which minimized the risk of mistaken identity. The appellant's alibi was considered but dismissed in light of the strong prosecution evidence. The court held that the conviction on counts 1 (robbery with violence) and 2 (theft of a motor vehicle) was safe and supported by the evidence. However, the court conceded the appeal in respect of count 3 due to insufficient evidence. The sentences imposed were lawful and appropriate for the offences proved.
Court Disposition
Appeal dismissed in respect of counts 1 and 2; appeal allowed in respect of count 3.
Orders
- Conviction and sentence on counts 1 and 2 are upheld.
- Conviction and sentence on count 3 are quashed.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROB
MILIMANI LAW COURTS
CRIMINAL APPEAL NO.1110 OF 1998
( From Original conviction and Sentence in Criminal Case No.4970 of 1997
of the Principal Magistrate’s court at Kibera)
JOHN KURIA GATEMBU ……………………….. APPELLANT
VERSUS
REPUBLIC ……………………………………….. RESPONDENT
P RO C E E D I N G
27/5/1999
Coram: Osiemo, J.,
Etyang, J.,
AppellanUnrepresented
Mr. O’Mirema for the State Counsel
C/Clerk Onduma
Hellen
Appellant – Appeal against both conviction and sentence. I rely on the grounds as contained in my memo of appeal. I also have written submission to add.
J.LA. OSIEMO
JUDGE
A.G.A. ETYANG
JUDGE
Mr. O’Mirera: I support both conviction and sentence. The appellant was convicted with 3 counts. Robbery contrary to Section 256(2), Penal Code …….. of motor vehicle contrary to section 278 Penal Code Sentenced to dead in count 1 and imprisonment for 2 and 3. Evidence of P.W.2 was attacked at 9 a.m. and robbed Shs.30,000/= property of P.W.1’s motor vehicle were missing at the same time. The appellant raised an Alibi P.W.2 was in P.W.1’s home at material time when the appellant came in driving and asked P.W.2 to take him to Aunt’s home. Appellant came back after a few minutes with two other people. The Appellant was supposed to escort her to her aunt’s place. P.W.2 went to collect the purse and when she came back she was attacked by the appellant and robbed.
The appellant after the robbery went away with the motor vehicle of P.W.1. P.W.2 reported to P.W.1 immediately when P.W.1 arrived he found P.W.2 had been robbed and assaulted. Reported the matter to police. P.W.2 identified the appellant as the driver of P.W.1. Report made to the police and name of appellant given. Evidence of recognition and it was broad day light 9 a.m. no possibility of mistaken identity. P.W.6 recovered the stolen motor vehicle the same day at 9 p.m. at Kileleshwa.
On the material date the appellant was on duty as he had taken P.W.1’s children to school.
The evidence against the appellant was overwhelming. The evidence of the appellant of alibi Was dismissed.
The conviction is safe and the appeal should be dismissed. I concede to the appeal in respect of count 3. Evidence against appellant not proved.
J.L.A. OSIEMO
JUDGE
A.G.A. ETYANG
JUDGE
Appellant: I was an employee of P.W.1 and I had worked for him for 11/2 months P.W.2 said she was robbed shs.30,000/=. I could not have robbed P.W.2 since she knew me well. P.W.2 could not have walked to up stairs if she had been strangled. Her evidence should be disregarded.
J.L.A. OSIEMO
JUDGE
A.G.A. ETYANG
JUDGE
Judgment on 15th June, 1999
J.LA. OSIEMO
JUDGE
A.G.A. ETYANG
JUDGE