Joseph Karimi Ngari  v Republic

High Court, at Nyeri

November 22, 1995

Ang’awa J

Criminal Appeal 212 of 1993

(From original conviction and sentence in PM’s Nyeri Cr C 963/90)

Civil Practice & Procedure – charges – where one is charged with robbery contrary to section 296(1) Penal Code – while offence supports a charge of burglary and theft under section 304(2) of Penal Code – whether appellate court can substitute and convict on latter charge.

The accused were charged with two counts of robbery contrary to section 296(1) of Penal Code and convicted the original accused 1,2 and 4. The appellant, here who was original accused 2 appealed stating that he was not properly identified and that the trial magistrate did not grant him opportunity to bring alibi defence.

The state counsel, on appeal, left it to court and did not give reasons as to whether he supported appeal or not. The court therefore looked at the charges brought against accused and whether different charge should have been instituted instead of charge of robbery contrary to section 296(1) of the Penal Code.

Held:

1. The court is satisfied that the appellant was part of the eight men gang which entered into the complainant’s house.
2. The offence of robbery under section 296(1) of the Penal Code should not have been used but rather one of burglary and theft contrary to section 304(2) of the Penal Code in both counts.

Appeal dismissed.

Joseph Waweru Ritho v Republic

High Court, at Nyeri

November 15, 1995

Ang’awa J

Criminal Appeal No 138 of 1995

(From original SPM’s court Nyeri Tr C 4443/93)

Civil Practice & Procedure – charges – form of – where a section of which one is charged is omitted – where omission is such as not to occasion miscarriage of justice.

Criminal law – alibi – defence of – where one raises alibi but doesn’t call evidence to proof – whether the court should accept this defence without proof.

The appellant was charged with failing to report an accident contrary to section 73 of the Traffic Act cap 403 and fined Shs 1,000/- or 3 months imprisonment on default.

The defence counsel on appeal however raised an issue to the effect that section 134(a)(ii) of the Civil Procedure Code ought to have been complied with in framing the charge. That in this particular instance, the offence that read contrary to section 73 should have been read with section 75 of the Traffic Act, which section outlines the penalty accused will be charged with.

Held:

1. The appellant afforded the police no opportunity to inspect the vehicle by simply not reporting the accident as to the burden of proof.

2. It was upto the appellant proof the alibi by bringing a witness from the garage who attended to the vehicle the whole day.

3. The prosecution ought not to have omitted section 75 from the charge, but nevertheless, there was no miscarriage of justice.

Appeal dismissed.

Michael Wachira Kimani v Republic

High Court, at Nyeri

November 15, 1995

Ang’awa, J

Criminal Appeal No 57 of 1994

Evidence - identification - visual identification - where accused is positively identified by witnesses - recognition of person - whether this identification is safe for conviction.

SUMMARY OF FACTS

The complainant was attacked and hit on the eye and he fell down. He was with his two colleagues who identified the attacker. They recognised the appellant after one of them lit a match.

The appellant was charged and convicted.

The appellant however denied the allegations but admitted that he was in the same bar the complainant was drinking beer in.

HELD:

1.          The questions asked by the accused confirmed that the appellant made efforts to have reconciliation understanding.
2.          Appellant was well known to the witness
3.          The appellant submitted in taking the complainant to hospital in his appeal

Appeal Dismissed

John Komu Mwangi v Republic

High Court, at Nyeri

October 11, 1995

Ang’awa J

Criminal Appeal No 205 of 1994

(From original Nanyuki Criminal Case No 1091/92)

The appellant together with another were duly convicted for an offence of housebreaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code. They were both convicted and preferred for probation.

The second accused and the appellant had however been convicted earlier and placed on probation in a different case. The probation officer, nonetheless recommended that they be placed on probation knowing very well that they had earlier been convicted and placed on probation.

Held:

1. To be placed on probation, one must be 1^st offender.

2. The accused ought to have been preferred to jail for the offence or alternatively fined as it was a misdemeanour.

3. The probation officer had failed to uphold his professional integrity by informing the court that the appellant could be discharged.

Appeal dismissed.

Joseph Miana Karuga & Benson Maingi v Republic

High Court, at Nyeri

May 5, 1995

Ang’awa, J

Criminal Appeal No 54 and 47 of 1995

Evidence – proof of – standard of proof – standard of proof in Criminal cases – where case is not proved  to required standards due to poor investigation – whether conviction against accused should stand.

Summary of The Facts

The accused 1,2,3 were charged with offence of theft of motor vehicle contrary to section 278(a) of Penal Code. The original 4^th accused’s charge was withdrawn, as he was prosecution witness No 1.

PW1 stated that there had been theft of his motor vehicle. The Police officer (PW 3) and PW 2 came across appellant No 1 and after further investigation and upon his arrest, he was able to lead them to the accused No 2.

Identification parade was however not conducted for PW1 to identify the thieves.There was generally par investigation of the case by the prosecution

Held:

1. Dock identification is generally worthless and the court should not place much reliance on it unless it has been preceded by properly conducted identification parade.
2.  By being a co-accused, the appellant No 1 evidence becomes that of a confession carried against his co-accused.
3. The applicant No 1 evidence must and should have been investigated further by prosecution as to who was present when appellant No 2 gave him the vehicle.

Appeal allowed.

Gervis Mathenge Thuku v Republic

High Court, at Nyeri

May 17, 1995

Ang’awa J

Criminal Appeal No 288 of 1994

(Original SPM’s Nyeri Cr C No 696 of 1994)

Evidence – identification evidence – identification by voice – where complainant says he recognised accused by voice – whether such identification is safe to rely on.

PW1 and PW2, a husband and wife were attacked by a gang of robbers who inflicted injuries and stole from them. They both made report at police station, and later taken to clinic for treatment.

The appellant was arrested by assistant chief, whom he rearrested. He was rearrested because PW1 stated that he recognised him through his voice, while the 2^nd witness stated that it was dark during the time of attack but would agree that it was the appellant who infact was their attacker with others.

Held:

1. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognise someone whom he knows as the friends, he should be reminded that mistakes in recognition of close friends and relatives are sometimes made.
2. The claim by the complainant that he recognised appellant by voice, is unsafe identification to rely on.
3. Where evidence alleged to implicate an accused  is entirely of identification that evidence must be absolutely watertight to justify a conviction.

Appeal allowed.

Hillum Macharia Kamau v Republic

High Court, at Nyeri

April 5, 1995

Ang’awa, J

Criminal Appeal No 248 of 1994

Criminal Practice and Procedure - charges - defective charge - charge based on wrong Provision of Law - whether conviction under such charge proper.

SUMMARY OF FACTS

The appellant was charged with the offence of: Stealing by person in the public Servers contrary to section 280 of the Penal Code. That on diverse days between 27/1/89 and 26/4/91 at the National Bank of Kenya Nakuru District of the Rift Valley Province being a person employed in the civil service he stole money in various currencies amounting to Kshs. 1,119,994/40, property of the National Bank Nakuru. He pleaded not guilty, convicted and sentenced.

The appellants case was that the evidence given against him was contradictory, that the magistrate relied on inadmissable documents and rejected appellants defence.

HELD:

1.  Employment in the Public Service is any person employed by the Government of Kenya and the ‘thing’ or item stolen must belong to the Government of Kenya or come in possession of such Government employee by nature of such employees employment.
2. The appellant was charged under the wrong section of the law

Appeal Allowed.

Mwangi & Another v Republic

High Court, at Nyeri

February 21, 1995

Ang’awa, J

Criminal Appeal No 384 and 385 of 1993

Evidence -  circumstantial evidence – where circumstantial evidence points to guilt of accused – where accused admit to killing in statement under caution – whether this is sufficient evidence to convict one of crime.

Summary of The Facts

The appellants were charged with offence of murder which was later committed to manslaughter and sentenced to 5 years imprisonment. No eye witness saw the incident but the appellants admitted to have had a fight with deceased in their statement under caution.

On conviction and sentence however both accused appealed against their conviction and sentence.

Held:

1. No eye witness saw the incident but there was circumstantial evidence namely a sketch plan which showed the body having been found of the scene places.
2. The appellants did not question statements under charge 4 caution in which they admitted to have had a fight with the deceased which caused his death.
3. The circumstantial evidence given indicate that a fight occurred in which as a result the appellants attacked them father but not with the intention to kill him.

Appeal against conviction dismissed.