[2017] KEHC 470 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO: 53 OF 2017

(From Original conviction and Sentence in Criminal Case No: 663 of 2015 of the Chief Magistrate’s Court at Thika)

PAUL MBURU WANYORO........................................................APPELLANT

-V E R S U S-

REPUBLIC.................................................................................RESPONDENT

J U D G M E N T

1. The appellant PAUL MBURU WANYORO, was charged with the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code.

The particulars thereof were that on the 5th dayofFebruary, 2015 at Thikatownship within KiambuCounty jointly with others not before court, while armed with offensive weapons namely rungus and pangas, robbed JAMES NYURURU NGARU of motor vehicle registration number: KBG 977M make Toyota Corolla NZE, mobile phone make LG E410 serial number 357533050911477 and cash Ksh. 12,100/= all valued at Ksh. 587,100/= and at the time of such robbery used actual violence to the said JAMES NYURURU NGARU occasioning his death.

2. He was duly convicted and sentenced to death as by law established.

3. Being aggrieved and dissatisfied the appellant has appealed against both the conviction and sentence.

4. The appellant in his written submissions he avers as follows:

1. The trial magistrate in failing to communicate to me my rights to representation in violated Article 50 (2) (h) (g)of constitution 2010.

2. The evidence adduced was insufficient to justify conviction.

3. My defence was not considered.

4. My silence did not imply that I was guilty?

5. The counsel for the respondent, on the other hand, opposes this appeal. Madam Ngalyukia submits as follows:

1. The deceased was given motor vehicle KBG 977 M on 5/02/2015 by PW1 – STEPHEN KIMANI GATITU. The deceased and the car disappeared the following day on 6/02/2015.

2. The appellant had left the phone LG E410 belonging to the deceased at the shop belonging to PW2 as security for a bill he owed PW2. There was evidence of recent possession.

3. The phone data revealed the appellant having used the said phone on 6/02/2015 on the day the deceased disappeared.

4. There was no explanation how the appellant came to be in possession of this phone at the time when the deceased, disappeared and was found murdered, in the light of which the appellant was convicted of the main count of robbery with violence.

5. The appellant chose to keep quiet. The evidence tendered was compellingly against him.

It is in the light of this evidence that I submit that it was safe to convict the appellant.

6. For this reason this appeal be dismissed.

6. FIRST APPEAL

This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.

7. TESTIMONIES IN THE PROCEEDINGS: ANALYSIS

On 4th February 2015, the deceased JAMES NYURURU NGARU, a taxi driver, at Makongeni area of Thika, driving motor vehicle registration number: KBG 977M, Toyota Corolla NZE was robbed of the said motor vehicle, above, together a mobile phone, make LG E410 and cash of Ksh. 12,100/= all valued at Ksh. 587,100/= and the time of such robbery used actual violence and killed the said JAMES NYURURU NGARU. Nine witnesses testified.

PW1 was the owner of the motor vehicle registration number: KBG 977M, he allowed the deceased at his request to use it as a taxi, for sometime. On 5th February 2015 at 8p.m. the deceased called PW1 and stated that the car had been damaged and needed Ksh. 5,000/= to do the repairs. PW1 sent the money at 9p.m. unknown to him, the deceased had also called his sister PW3 and his mother PW4 and asked for money giving the same story of damage. These people sent money to him. However, at 10p.m. the deceased’s phone went silent.

The report of a missing person was filed at Makongeni police station. A report filtered by the public that a body was cited at Gakoe tea estate on the road. The family confirmed the body to be of JAMES NYURURU NGARU.

However, on 18/02/2015, the appellant and two other people appeared at Makongeni taxi area wanting to hire a taxi before

PW6 – SIMON NG’ANG’A MBURU to Ngoingwa estate. Through close integration, PW6 became suspicious and declined to give taxi services to the would be passengers. On 19th the same blokes approached other taxi men with the self-same request and PW6 having shared his earlier fears, they alerted the rest and were arrested by the taxi and taken to Makongeni police station.

LG E410 data was sent to Safari-com. It transpired that on 5/02/2015. The deceased received a call from the appellant’s numbers. This LG phone was traced to PW2 – a shopkeeper at which the appellant left it as security for a debt of 585/=

Eventually PW9& PW8, the appellant volunteered to take the police to where he had taken the LG phone and where the body of the deceased had been hidden. His statement of confession was recorded by Deputy DCIO C.I Chepkwony.

8. I am satisfied that the appellant is the person who committed the heinous offence of robbery with violence. The case was proved beyond reasonable doubt. The elements of the offence were proved beyond reasonable.

9. I agree with the respondent counsel that there was no explanation how the appellant came to be in possession of this phone at the time when the deceased, disappeared and was found murdered, in the light of which the appellant was convicted of the main count of robbery with violence.

10. FINDINGS

For those reasons, this appeal is hereby dismissed. This court upholds both the conviction and sentence by the trial Magistrate.

Right of appeal – 14days.

JUDGMENT WRITTEN AND SIGNED BY:

C. B. NAGILLAH

JUDGE

JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY:

THIS 4TH DAY OF OCTOBER 2017

JOEL NGUGI

JUDGE

In the Presence of:

……………………………the Appellant

……………………………for Respondent

……………………………for Court Assistant