[2005] KEHC 3000 (KLR)
The court found that the prosecution had adduced ample evidence proving beyond reasonable doubt that the appellant participated in the robbery with violence. The appellant's defence of innocent presence was rejected as implausible given the circumstances, including his presence in the vehicle during the commission...
Source-derived case information.
- Citation
- [2005] KEHC 3000 (KLR)
- Parties
- Appellant: Peter Kinyua Kihara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1329 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- JL Osiemo
- Legal Topics
- Robbery With Violence, Criminal Liability, Defence of Innocent Presence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kinyua Kihara
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the charge of robbery with violence against the appellant beyond reasonable doubt.
- 2 Whether the appellant's defence of innocent presence was credible and sufficient to rebut the prosecution's case.
Ratio Decidendi
The court found that the prosecution had adduced ample evidence proving beyond reasonable doubt that the appellant participated in the robbery with violence. The appellant's defence of innocent presence was rejected as implausible given the circumstances, including his presence in the vehicle during the commission of the offence, his attempted escape, and the corroborative testimony of multiple witnesses. The court held that the appellant was properly convicted under Section 296(2) of the Penal Code, as all elements of the offence were established. The appeal against both conviction and sentence was found to be without merit and was dismissed accordingly.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of death are upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL APPEAL NO. 1329 OF 2001
(From Original Conviction and Sentence in Criminal Case No.23376 of 2000
of the Chief Magistrate’s Court at Makadara).
PETER KINYUA KIHARA................................................. APPELLANT
VERSUS
REPUBLIC.....................................................................RESPONDENT
JUDGMENT
The appellant was charged with robbery with violence contrary to Section 296(2) of the Penal Code. He was tried, convicted and sentenced to death. His appeal to this court is against both conviction and sentence.
The prosecution case is that PW1 operates a taxi business. On the 26th August 2000 at around 11. 10 p.m. while he was outside Mahutiini bar waiting for customers the appellant in company with another man and a lady approached him and wanted to hire his taxi. PW1 was with PW2. PW1 asked for Shs.200/= but the appellant suggested Shs.150/= while the other man suggested Shs.100/= but the lady said that Shs.200/= was fair. PWl agreed to take them for Shs.150/=. The appellant sat at the rear with the lady together with PW2 while the other man sat at the co driver's seat. On the way the man who sat at the co-driver's seat produced a pistol and ordered PW 1 to drive towards Kariobangi Estate. That other man fired in the air, to demonstrate that what he had was a pistol and not a toy. That man ordered PW1 to stop so that he could take charge of the taxi. PW1 stopped. But while that other man alighted to come to the driver's seat, PW4 who also did taxi business arrived. When he saw the taxi of PW 1 stopped on the road he stopped to find out if PW 1 had any problem. This prevented that other man from getting to the driver's door. That short delay enabled PWI to gather courage and drive away at high speed. PW4 saw that other man brandishing a pistol as he escaped. PW1 drove at high speed while screaming until he reached Outspan bar with the appellant and the lady inside. When PW 1 stopped at Outspan the appellant and the lady tried to escape but since the screaming had alerted the patrons they came out and chased them and they were arrested. PW5 who is a watchman at Outspan saw when the PWI came driving at high speed and screaming until he stopped at the bar. He witnessed when the appellant and the lady jumped out of PW 1's taxi when it stopped and tried to escape. The two were chased and arrested and were subjected to mob justice until they were rescued by the police. Because the appellant and the lady has sustained serious injuries, they were rushed to Kenyatta National Hospital for treatment. They were admitted for 2 weeks.
The appellant does not deny that on the material date he was drinking with that other man and the lady. His only explanation was that when he entered the bar he found the lady whom he knew as Nyambura drinking with that man. They offered him some beers and in obliged. He sat drinking with them until about 11 p.m.. when they decided to go away.
They approached PW 1 to take them away in his taxi. He was surprised on the way when that man who was with them, turned violent and he ordered PW 1 at gun point to drive to Kariobangi Estate. When they reached near Outering roundabout he ordered PW1 to stop so that he could take charge of the taxi. But before that man could get to the driver's door PW4 came driving from behind and when he found the taxi of PW 1 stopped on the road side, he stopped since he knew him to find out what the problem was. When that man saw PW4 stop, he blandished the pistol and escaped. This made PW 1 take off at high speed while screaming until he reached Outspan bar. Because of the screaming people came out and started beating him and the lady mistaking them to be robbers. But fortunately police arrived and rescued them. They were rushed to Kenyatta National Hospital for treatment since they had sustained serious injuries. They were admitted for 2 weeks and he was charged with this offence after he had been discharged from hospital. Nyambura disappeared after she was discharged
He further told the court that he was surprised to learn that the man he was drinking with was a dangerous man. The trial magistrate rejected the appellant's defence, and rightly so. There was ample evidence to prove beyond any reasonable doubt that the charge of robbery with violence contrary to Section 296(2) of the Penal Code was proved and that the appellant was properly convicted.
In the result we see no merit in the appellant's appeal. The appeal is dismissed. Orders accordingly.
Dated and delivered at Nairobi this 8th day of February 2005.
J.L.A. OSIEMO
JUDGE
FRED OCHIENG
JUDGE