[2009] KEHC 856 (KLR)
The court found that the prosecution failed to prove the offence of attempted robbery with violence as there was no evidence of an attempt to rob or entry into the complainant's house. However, the court was satisfied with the identification of the 2nd appellant, Joseph Kithinji, based on the complainant's testimony...
Source-derived case information.
- Citation
- [2009] KEHC 856 (KLR)
- Parties
- Appellant: Solomon Kiburi; Appellant: Joseph Kithinji; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 12 & 10 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; convictions for attempted robbery with violence quashed; 2nd appellant convicted of assault occasioning bodily harm and sentenced to six months imprisonment already served; appellants to be released unless otherwise lawfully held.
- Judges
- MM Kasango, MJA Emukule
- Legal Topics
- Attempted Robbery With Violence, Identification Evidence, Assault Occasioning Bodily Harm, Criminal Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Kiburi
Appellant
Joseph Kithinji
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of attempted robbery with violence against the appellants beyond reasonable doubt.
- 2 Whether the identification of the 2nd appellant was reliable and sufficient for conviction.
- 3 Whether the evidence supported a conviction for a lesser offence of assault occasioning bodily harm.
Ratio Decidendi
The court found that the prosecution failed to prove the offence of attempted robbery with violence as there was no evidence of an attempt to rob or entry into the complainant's house. However, the court was satisfied with the identification of the 2nd appellant, Joseph Kithinji, based on the complainant's testimony and the circumstances of the incident, including recognition by moonlight and prior acquaintance. Medical evidence confirmed that the complainant sustained harm. Exercising its discretion under Section 354 of the Criminal Procedure Code, the court quashed the conviction for attempted robbery with violence and substituted it with a conviction for assault occasioning bodily harm...
Court Disposition
Appeal allowed in part; convictions for attempted robbery with violence quashed; 2nd appellant convicted of assault occasioning bodily harm and sentenced to six months imprisonment already served; appellants to be released unless otherwise lawfully held.
Orders
- The appeal against conviction and sentence is allowed; the appellants' convictions and sentences in the lower court are quashed and set aside.
- The 2nd appellant, Joseph Kithinji, is convicted of common assault contrary to section 250 of the Penal Code and sentenced to six months imprisonment from 26th January 2006, which sentence has now been served.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MERU
Criminal Appeal 12 & 10 of 2006
SOLOMON KIBURI ……………………………. APPELLANT
VERSUS
JOSEPH KITHINJI …………………………….. APPELLEANT
VERSUS
REPUBLIC ……………………………………… RESPONDENT
(An appeal against the judgment of M.S.G. Khadambi (Mrs) SRM in Meru Criminal Case No. 2720 of 2004 delivered on 7th March 2008)
JUDGMENT
The appellants were charged in the lower court with attempted robbery with violence contrary to section 296(2) of the Penal Code. They were convicted by the lower court after trial. They were sentenced to death. They have filed this appeal against both conviction and sentence.
The learned state counsel Mr. Kimathi conceded to the appeal by saying that the prosecution did not prove that the appellants attempted to rob the complainant or to enter into her house. He submitted that the prosecution failed to show what the appellants attempted to rob.
In our view, the learned state counsel was right in his concession. There was no evidence adduced by the prosecution to prove that the appellants attempted to rob PWI. The only evidence adduced by PWI was that the 2nd appellant assaulted her by cutting her on the left arm with a simis. She recognized the 2nd appellant by aid of the moonlight. At one point, they were face to face in the door way. She also knew him prior to that incident since he had grown up in her neighbourhood. Further, and in particular, the 2nd appellant announced himself to her and said:-
“…………I am Joseph Kaunga. I can burn the house.”
PWI continued to state that the 2nd appellant father is called Kaunga. We are satisfied with the identification of the appellant although it was identification under difficult circumstances which was not conducive to positive identification. Having examined the evidence we find that there was sufficient moonlight to identify the 2nd appellant and at one time PWI was very close to him. Our finding is in taudem with the decision of MaitanyiVrs Republic [1986] KLR 198. Having found that there was sufficient evidence of identification of the 2nd appellant, we find that there is also sufficient evidence showing that he did injure PWI. PW5, the clinical officer assessed the injuries of PWI to be harm. In terms of the wide discretion conferred upon this court by Section 354 of the Criminal Procedure Code, we shall proceed to convict him of assault occasioning bodily harm. There was sufficient medical evidence to support this. Accordingly, our judgment is as follows:-
1. We allow the appeal against conviction and sentence and order that the appellant’s conviction in the lower court be quashed and is hereby set aside their sentence.
2. We do hereby convict the 2nd appellant Joseph Kithinji of common assault contrary to section 250 of the penal Code. We do hereby sentence him to 6 months imprisonment which sentence will begin to run from 26th January 2006. That sentence has now been served.
3. We hereby order that the appellants be released from custody unless otherwise lawfully held.
Dated and delivered at Meru this16th day of November 2009.
MARY KASANGO
JUDGE
M.J.A. EMUKULE
JUDGE