[2023] KEHC 26454 (KLR)

Mokaya v Republic (Criminal Appeal E026 of 2023) [2023] KEHC 26454 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26454 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E026 of 2023

KW Kiarie, J

December 7, 2023

Between

Lawrence Onyiego Mokaya

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case No.690 of 2020 of the Chief Magistrate’s Court at Kisii by Hon. P.K. Mutai–Senior Resident Magistrate)

Judgment

1. Lawrence Onyiego Mokaya, the appellant herein, was convicted after pleading guilty to the offence of robbery with violence contrary to section 296 (2) contrary of the Penal Code.

2. The particulars of the offence are that on the 9th day of April 2020 at Nyaura village, in Kisii Central sub-County within Kisii County, jointly with others not before the court, while armed with machetes, clubs, and metal bars robbed Simon Onderi Sarara of cash Kshs 7,000/=, a 32-inch Sony television set, Sony DVD player, Astrofox decoder, three briefcases, assorted clothes, Infinix mobile phone, and assorted utensils all valued at Kshs 200,000/= and immediately before the time of the said robbery used actual violence to the said Simon Onderi Sarara.

3. The appellant was sentenced to fifteen years imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He raised grounds of appeal as follows:a.That the learned trial magistrate erred in law and fact to convict the appellant without considering that the prosecution case was not proved beyond reasonable doubt.b.That the learned trial magistrate erred in law and fact by finding that the appellant’s rights were violated contrary to section 42 of the CPC which stipulates that the accused person has the right to be informed in advance of the evidence that the prosecution intends to rely on (art 50(2) (f) of the Constitution.c.That the learned trial magistrate erred in law and fact without withstanding that the appellant upon making a lot of efforts to be supplied with essential documents to be used in court were not availed. This includes the charge sheet and the medical report of the complainant which is against the law.d.That the learned trial magistrate equally failed to note that the appellant was entitled to access the charge sheet and all the witnesses’ statements which the prosecution failed to disclose all the evidence in its possession regarding the case.e.That the learned trial magistrate erred in law and fact without withstanding that the material witness, in this case, was not called to court to give her evidence regarding the purported stolen phone since the said phone was found in her possession.f.That the learned trial magistrate erred in law and fact without taking into consideration matters alleged as far as this case is concerned since the commission of this robbery the appellant was detained in a police cell.g.That the learned trial magistrate erred in law and fact by objecting to the OB No’s [sic]which indicated the time and period the appellant was arrested and released vide booking OB No 30 of 24/3/2020 1930hrs and released OB No 23 of 9/4/2020 1810hrs which gives directory on the matters of events. [sic]h.That the learned trial magistrate erred in law and fact without considering that there was no investigation done.i.That the learned trial magistrate erred in law and fact by not analyzing the evidence on record to note the glaring contradictions since the alleged robbery took place on 8/4/2020 and at this time the appellant was held at Rioma police cell.j.That the learned trial magistrate erred in law and fact without considering that the DNA test or any medical test done to confirm the truth matter of who assaulted the complainant.

4. The state conceded to the appeal through Mr. Justus Ochengo. Learned counsel. He said failure to call Esther Nyanchoka Mose, a material witness rendered the conviction unsafe. He therefore prayed for a retrial.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusion while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32.

6. The appellant was connected to the offence of robbery by the stolen phone which was tracked to him. According to the evidence of Sgt. Agnes Mutheri (PW4), the phone was traced to one Esther Nyancheka Mose. Esther said, according to this witness, that Lawrence sold the phone to her.

7. In his defence, the appellant contended that he inserted his sim card in the phone of Esther Mose, his longtime girlfriend. There was no other evidence against the appellant. The prosecution failed to call a material witness. The Court of Appeal in the case of Bukenya v Uganda [1972] EA 549, (Lutta Ag Vice President) held:The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.

8. In the instant case, I am persuaded to infer that had this witness been called, her evidence would have been unfavourable to the prosecution case. I therefore quash the conviction and set aside the sentence. The appellant is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 7TH DAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE