Moses Simiyu Kuhuri v Republic [2017] KEHC 2036 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL NO.131 OF 2013

MOSES SIMIYU KUHURI….….APPELLANT

VERSUS

REPUBLIC……………...……..RESPONDENT

JUDGEMENT

1. The Appellant herein Moses Simiyu Kuhuri was charged with the offence of Robbery with Violence in CMCRC No.2226 of 2012, convicted and sentenced. Being aggrieved by the judgement he appealed to this Court.

2. His grounds of appeal are that, his rights were violated at the hearing of his case; the trial Court failed to analyse the evidence on record; and there was misinterpretation of the Law.

3. The State conceded to the Appeal citing that there was no sufficient evidence to sustain the charge.

4. As an Appellate Court, I have the duty to consider the evidence before arriving at an independent opinion See Okeno Vs R (1972) E.A.

5. The evidence of PW1 the Complainant is that he was employed as a rider of motor cycle. He operated along Sirisia – Lwakhakha road. On 5/10/2012 at 6p.m. while at Chwele market the accused asked to be taken to Lwandanyi church at an agreed fare of Kshs.200/-. On reaching his destination the accused hit the Complainant twice on the head, shortly two people joined the accused and left with the motor bike. A good Samaritan gave a lift to the Complainant to Lwakhakha police station where he reported the incident. Later the Appellant was arrested and the Complainant was able to identify him due to his peculiar features.

PW3 the Investigating Officer PC Peter Komu of Crime Section, Lwakhakha Police Station recalled receiving the Complainant on 5/10/2012 at 8. 40 where he reported having been robbed off motor cycle KMCQ 693B, that the accused was arrested in Chwele on 20/10/2012, an identification parade conducted and PW1 positively identified the accused. The motor cycle was not recovered.

The other witnesses were the owner of the motor cycle and a doctor who examined PW1.

6. The only witness who linked the accused to the robbery is PW1 who stated that he recognized the appellant through special features yet he did not state what these ‘special features’ were.

Secondly he alluded to an identification parade yet no evidence was led to this effect. No identification parade form was produced or evidence adduced by the Officer who conducted the same.

7. I find myself to be in agreement with the State that there was no evidence linking the appellant to the offence. The evidence of PW1 was weak and uncorroborated to sustain a charge of robbery with violence.

8. Consequently the conviction is quashed and the Sentence set aside.

The appellant is hereby acquitted. He is set free unless he is otherwise lawfully being held.

DATED and DELIVERED at BUNGOMA this 5th day of October, 2017

ALI-ARONI

JUDGE