[2004] KEHC 1069 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMABSA APPELLATE SIDE CRIMINAL APPEAL NO. 20 OF 2003

KAZUNGU KASIWA MUKUNZO …………………………………… APPELLANT

V E R S U S

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

CONSOLIDATED WITH

CRIMINAL CASE NO. 21 OF 2003

SWALEH KAMBI CHAI …………………………………APPELLANT

V E R S U S

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

(From the original conviction and sentence in criminal case no. 7 OF 2001 of the Senior Principal Magistrate’s Court – Malindi)

J U D G M E N T

These two appeals were consolidated by order of the court on 31/8/2004. Appellant No. 1 is Kazungu Kasiwa Mukunzo his grounds of appeal are that:-

1 & 2. Identification was not satisfactory.

3. the evidence of PW1 was not credible as he was an accomplice.

4. the exhibited gun was in no way connected with first

appellant.

5. the source of his arrest was not pointing at his guilt.

6. the offence was not proved beyond any reasonable doubt.

7. and that the defence case was not given any consideration.

The second appellants grounds are similar regarding identification by recognition – he was not in possession of the complaints property. He was not given a chance to make his final submissions.

The first charge against both appellants was under Section 296 (2) Penal Code in that on 14/12/00 at Shauri Moyo trading center jointly with others not before the court while armed with dangerous weapons namely a G3 rifle and knives robbed Josephat Karisa Kazungu of stated items and money and at or immediately before or immediately after the time of such robbery threatened to use actual violence on the said Josephat Karisa Kazungu. The other 2 charges relate to firearms offence.

After a full trial the Trial Magistrate found that the ingredients of the charge under Section 296(2) Penal Code were proved and consequently convicted the appellants.

On the issue of identification the complainant PW2 knew Swaleh Kambi Chai. This is admitted by this appellant in his sworn evidence. PW1 the Taxi driver also knew this appellant as both had gone to school together at primary school. However PW1 called him Edward Kambi. As for the 2nd appellant he was seen in front of the shop by PW5 and other members of public as they robbed the complainants shop. The incident took half an hour according to the complainant. It was during the morning hours around 7 a.m and there is no suggestion that there was no sufficient daylight to enable people to see. The two appellant were arrested from a bush in the same area immediately after robbery. The police officer PW8 said that it would have been useless to hold an identification parade in the circumstances and we are of the opinion he was right. We find on evidence that the circumstances of positive identification were satisfactory and the Trial Magistrate was correct in finding that the appellants were positively identified.

On the ground 2 it is true that the witnesses were frightened when the gun was pointed at them. They testified that they went to hide but kept watch while hiding nearby. So they were able to see what was going on and they were not confused.

On ground 3 the Taxi driver PW1 gave clear evidence how he was hired by the appellants to drive them from Malindi to Shauri Moyo Magarini. He was accompanied by another man, taxi driver, as co driver. At Shauri Moyo he discovered that the passengers were robbers and he drove off from the scene. He was not paid by the appellants their fare. He was doing his job and we find he was not an accomplice and his evidence was safe.

On ground 4 there is evidence that the robbers were 3 and one of them had a gun with which he threatened to shoot members of public and witnesses at the scene. The appellant were chased by members of public and driven into a bush from where they were ferreted out. It is in that bush that police found the gun. The conclusion is that the appellants were the ones who dropped the gun when they saw there was no escape.

On ground 5 the two appellants were arrested by members of public because they were seen robbing the complainant’s shop and taking goods therefrom. The complainants property was found in a bag originally with the appellants measuring 3 ft as told by PW1 the taxi driver which the appellants dropped and was collected by the witnesses. These appellants were seen collecting the shop goods from the complainant shop.

Regarding grounds 6 & 7 of appeal the record shows that the appellant statements were considered, however, they did contain admissions that the appellant on that morning were in the area where the offence was committed and that is where they were arrested. The Trial Magistrate was right in finding that the prosecution evidence was overwhelming and that the case was proved beyond reasonable doubt.

We have perused the record and we find that there were minor discrepancies on the record by Trial Magistrate. This is attributable to typographical errors. The journey started at the taxi driver’s house at 5 a.m. The prosecution witness and the appellants agree that the incident took place in the morning of 14/12/00.

In conclusion we find that the conviction was reached on firm evidence and that the prosecution case was proved against all counts beyond any reasonable doubt. We find no reason to interfere. The appeal is hereby dismissed.

The sentence on Count II & III are hereby suspended pending the execution in Count 1.

Dated this 17th day of November, 2004.

J. KHAMINWA

JUDGE

D. MARAGA

AG. JUDGE

23. 11. 04

Coram as before

Judgment read in presence of the two accused and also Ms. Mwaniki for State in open court.

Appellants we pray for copy of judgment.

Court – the judgment will be provided to the appellants without charge.

Right of appeal within 14 days.