[2001] KEHC 880 (KLR)
The court found that the evidence from the prosecution witnesses established that the appellant, together with others, robbed the complainants in broad daylight and was apprehended at the scene. The identification of the appellant was not in issue, as the events occurred in daylight and the witnesses were able to...
Source-derived case information.
- Citation
- [2001] KEHC 880 (KLR)
- Parties
- Appellant: Mwinzi Kithiki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 25 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Robbery With Violence, Sentencing Principles, Police Supervision, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwinzi Kithiki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced at trial was credible and sufficient to sustain a conviction for robbery with violence.
- 2 Whether the appellant's defence was properly considered by the trial court.
- 3 Whether the sentence imposed was lawful and appropriate.
Ratio Decidendi
The court found that the evidence from the prosecution witnesses established that the appellant, together with others, robbed the complainants in broad daylight and was apprehended at the scene. The identification of the appellant was not in issue, as the events occurred in daylight and the witnesses were able to identify him. The appellant's defence was considered and found to lack credibility. The trial magistrate properly convicted the appellant on both counts of robbery with violence. The sentence of 7 years imprisonment plus six strokes of the cane was lawful, and the appellant was also to be placed under police supervision for five years upon release. The sentences were to run...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of 7 years imprisonment plus six strokes of the cane is upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS APPELLATE SIDE
CRIMINAL APPEAL NO. 25 OF 2001
(From Original Conviction and Sentence in Criminal Case No.1727 of 2000 of the Senior Principal Magistrate’s Court at Machakos: P. C. Tororey, Miss on 23. 1.2001)
10 MWINZI KITHIKI ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
Coram: J. W. Mwera J. Appellant not present Orinda State Counsel for Respondent C.C. Muli **********************
J U D G E M E N T
20 The appellant was charged with two others under S.296(2) Penal Code in that on 1. 7.2000 on Kenya Meat Commission – Kinanie Road; Athi River Machakos, with another not before court they jointly robbed John Kyalo of a bicycle and wristwatch and immediately before of after that robbery they threatened to use actual violence on Kyalo. That the robbers were armed with dangerous weapons – simis, and iron bars. The second charge also under S.296(2) Penal Code was that the lot similarly robbed one Alexander Nzomo his bicycle and wrist watch.
The accused persons were tried, convicted under S. 296(1) Penal Code and sentenced to serve 7 years imprisonment plus 3 strokes of the cane. Had the Learned Trial Magistrate been so careful as to look up her law she would have noted and imposed the mandatory 5-year police supervision on release. (see S.344A Criminal Procedure Code)
The appellant filed a petition claiming that the evidence before the lower court was not credible and sufficient to found a conviction on. That his defence was not properly considered and that he wished to attend the hearing of his appeal. The 10 appellant was notified to attend the hearing at his own costs; he did not do so and the hearing proceeded.
The Learned State Counsel supported the conviction on evidence before the Learned Trial Magistrate adding that although the 7 years imprisonment appeared to be on the higher side this court could look at it.
Going over the lower court record shows that the two offences were committed at 7 a.m. John Kyalo Wambua (P.W.1) was attacked by four boys including the appellant and robbed of his property. They began to ride off. On the 20 way they met Alexander Nzomo (P.W.3) and again robbed him of his bicycle and wrist watch. But Mutua Nzuki (P.W.2) arrived there and noticed what was going on. His mates in the motor vehicle he was driving namely Alfred Lukose (P.W.4) and Isaiah Owimba (P.W.6) jumped from the motor vehicle chased and arrested the thugs including the appellant. They were handed over to P.C. Auko (P.W.5) at Athi River Police Station for rearresting a charges. He produced the exhibits.
The defence by the appellant that he was arrested for nothing and forced to look for some thieves did not make much sense to the Learned Trial Magistrate. She found that the arrest was in the process of committing the robbery on P.W.3 and that identification was not in issue. All took place in daylight. Both P.W.1 and 3 were robbed. Thus conviction on two counts called for sentences thereon separately. The Learned Trial Magistrate seemed to have awarded the sentence without stating so.
The sentence was lawful even if the appellant was a first offender. It is 10 therefore left undisturbed but it shall be on each of the two counts concurrently. The appellant shall also remain under police supervision for 5 years on release.
In sum the total sentence to be served is 7 years imprisonment plus six (6) strokes of the cane plus police supervision.
The appeal is dismissed.
Judgement accordingly.
20 Delivered on 17th July 2001
J. W. MWERA
JUDGE