[2003] KEHC 826 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

CIV CASE 526 OF 93

JESSE MWANGI THEURI………….....….……………………………..APPELLANT

VERSUS

REPUBLIC…………………… …………………………………..…....RESPONDENT

J U D G M E N T

JESSE MWANGI THEURI has appealed against both the conviction and sentence of

death passed against him by KAVEDZA MRS. The Appellant had been charged of violently

robbing the Complainant DAVID MWANGI of cash money and mobile phone.

DAVID told the Court that he escorted a colleague, PW2, to a bus stage at University

Way where he took a matatu. As he walked along Koinange Street, DAVID said that he was

grabbed by four men; one of them started strangling him while the rest frisked his pockets and

robbed him of cash, identity card and mobile phone. DAVID said that he heard a gun shot after

which three of the robbers ran away. DAVID decided to grab the one who had been strangling

him and he held on to him until PW3, PC KIPKURUI came and re-arrested him. The one the

Complainant and PW3 arrested was identified as the Appellant.

In his defence the Appellant said that he was a matatu conductor and that on the

material night he was looking for change when he met the Complainant. He said that the

Complainant alleged he had robbed him leading to his arrest.

The Appellant raised three grounds of appeal that one, the trial magistrate failed to

analyze the evidence of PW1 and PW3 to find that it had material contradictions. That the

Complainant’s credibility was tainted and was therefore unreliable, and finally that his alibi

defence was not given due consideration.

We have re-evaluated the evidence adduced before the trial court. The Appeal was

opposed. MRS. KAGIRI learned counsel for the State submitted that the Complainant held

the Appellant until Police came and arrested him and therefore there was no doubt that he had

committed the offence.

The evidence of identification was very clear and without doubt. The Appellant was

apprehended by the Complainant at the scene of crime after the Appellant’s accomplices had

robbed the Complainant before fleeing from the scene. The Complainant’s evidence that he

held onto the Appellant until police re-arrested him was corroborated by PW3, PC

KIPKURUI. PC KIPKURUI is the police officer who re-arrested the Appellant from the

Complainant at the scene of incident. PC KIPKURUI said that he witnessed the entire

incident from the time the four men surrounded and robbed the Complainant while one of them

tried to strangle him to the time the robbers fled leaving the Appellant behind. The Appellant is

the one who had been strangling the Complainant. The Complainant grabbed the Appellant

before he could escape with his accomplices.

We find that the evidence against the Appellant was overwhelming. We find that the

evidence was very clear that the Appellant was an accomplice to the robbery in question. The

Appellant’s denial that he was an innocent passerby could not shake the evidence of the

prosecution adduced against him. We also find that his defence cannot be classified as alibi

defence because he was at the scene of this incident at the time the offence took place and at the

time of his arrest. The Appellant’s grounds of appeal have no merit in the circumstances and

we accordingly dismiss them.

Having considered this appeal at length we find that the conviction entered against the

Appellant was safe and should not b disturbed. We dismiss the appeal accordingly.

Dated at Nairobi this 20th day of September 2005.

……………………..

LESIIT, J.

JUDGE

……………………..

M.S.A.MAKHANDIA

JUDGE

Read, signed and delivered in the presence of;

……………………..

LESIIT, J.

JUDGE

……………………..

M.S.A.MAKHANDIA

JUDGE