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Case Class: Criminal


John Opiyo Ogolla V Republic [2013] eKLR

Case Number: Criminal Appeal 19 of 2011 Date Delivered: 30 Oct 2013

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: John Opiyo Ogolla v Republic

Citation: John Opiyo Ogolla V Republic [2013] eKLR

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Republic V Michael Wambua Mutua [2013] eKLR

Case Number: Criminal Case 15 of 2010 Date Delivered: 30 Oct 2013

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Republic v Michael Wambua Mutua

Citation: Republic V Michael Wambua Mutua [2013] eKLR

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Samuel Nziuki Kanesa V Republic [2013] eKLR

Case Number: Criminal Appeal 113 of 2012 Date Delivered: 30 Oct 2013

Judge: Beatrice Thuranira Jaden, Joel Mwaura Ngugi

Court: High Court at Machakos

Parties: Samuel Nziuki Kanesa v Republic

Citation: Samuel Nziuki Kanesa V Republic [2013] eKLR

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Republic V Dorothy Mbinya [2013] eKLR

Case Number: Criminal Case 46 of 2009 Date Delivered: 30 Oct 2013

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Republic v Dorothy Mbinya

Citation: Republic V Dorothy Mbinya [2013] eKLR

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Micheal Mbaabu Mutegi V Republic [2013] eKLR

Case Number: Criminal Appeal 30 of 2010 Date Delivered: 30 Oct 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Micheal Mbaabu Mutegi v Republic

Citation: Micheal Mbaabu Mutegi V Republic [2013] eKLR

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Daniel Mugambi Muthomi V Republic [2013]

Case Number: Criminal Appeal 148 of 2011 Date Delivered: 30 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Daniel Mugambi Muthomi v Republic

Citation: Daniel Mugambi Muthomi V Republic [2013]

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Stanley Mwambia V Republic [2013] eKLR

Case Number: Criminal Appeal 25 of 2012. Date Delivered: 30 Oct 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Stanley Mwambia v Republic

Citation: Stanley Mwambia V Republic [2013] eKLR

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Baabu Miriti V Republic [2013] eKLR

Case Number: Criminal Appeal 27a of 2011 Date Delivered: 30 Oct 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Baabu Miriti v Republic

Citation: Baabu Miriti V Republic [2013] eKLR

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Ronald Hamisi V Republic [2013] eKLR

Case Number: Criminal Appeal 173 of 2012 Date Delivered: 30 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Ronald Hamisi v Republic

Citation: Ronald Hamisi V Republic [2013] eKLR

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S.R.M V Republic [2013] eKLR

Case Number: Criminal Misc. Application 128 of 2012 Date Delivered: 30 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: S.R.M v Republic

Citation: S.R.M V Republic [2013] eKLR

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Paul Gachoki Muchangi V Republic [2013] eKLR

Case Number: Criminal Appeal 86 of 2013 Date Delivered: 30 Oct 2013

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Paul Gachoki Muchangi v Republic

Citation: Paul Gachoki Muchangi V Republic [2013] eKLR

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John Muguthi Kang’ethe V Republic [2013] eKLR

Case Number: Criminal Appeal 322 of 2006 Date Delivered: 29 Oct 2013

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Muguthi Kang’ethe v Republic

Citation: John Muguthi Kang’ethe V Republic [2013] eKLR

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Evans Makumi Wanyutu & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 404 & 405 of 2006 Date Delivered: 29 Oct 2013

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Evans Makumi Wanyutu & Robert Makumi Waweru v Republic

Citation: Evans Makumi Wanyutu & Another V Republic [2013] eKLR

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Republic V Fahmi Salim Said [2013] eKLR

Case Number: Criminal Revision 72 of 2013 Date Delivered: 29 Oct 2013

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Republic v Fahmi Salim Said

Citation: Republic V Fahmi Salim Said [2013] eKLR

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Republic V Francis Ngari Gitau [2013] eKLR

Case Number: Criminal Case 44 of 2012 Date Delivered: 29 Oct 2013

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Francis Ngari Gitau

Citation: Republic V Francis Ngari Gitau [2013] eKLR

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Republic V Daniel Mugabe Siso [2013] eKLR

Case Number: Criminal Case 76 of 2013 Date Delivered: 29 Oct 2013

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Daniel Mugabe Siso

Citation: Republic V Daniel Mugabe Siso [2013] eKLR

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Simon David Harris & Another V Republic [2013] eKLR

Case Number: Revision 99 of 2013 Date Delivered: 29 Oct 2013

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Simon David Harris & Richard Wangwe Adera v Republic

Citation: Simon David Harris & Another V Republic [2013] eKLR

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Republic V Arab Maalim Hassan [2013] eKLR

Case Number: Criminal Case 5 of 2012 Date Delivered: 28 Oct 2013

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Republic v Arab Maalim Hassan

Citation: Republic V Arab Maalim Hassan [2013] eKLR

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Salim Mwenda Shaban V Republic [2013] eKLR

Case Number: Criminal Appeal 226 of 2009 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Salim Mwenda Shaban v Republic

Citation: Salim Mwenda Shaban V Republic [2013] eKLR

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Republic V Godfrey Ngotho Mutiso [2013] eKLR

Case Number: Criminal Case 55 of 2004 Date Delivered: 28 Oct 2013

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Republic v Godfrey Ngotho Mutiso

Citation: Republic V Godfrey Ngotho Mutiso [2013] eKLR

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Joseph Saitoti V Republic [2013] eKLR

Case Number: Criminal Appeal 56 of 2009 Date Delivered: 28 Oct 2013

Judge: Linnet Ndolo

Court: High Court at Kitale

Parties: Joseph Saitoti v Republic

Citation: Joseph Saitoti V Republic [2013] eKLR

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Stanley Kipchirchir Kosgey V Republic [2013] eKLR

Case Number: Misc. Cr. Application 98 of 2013 Date Delivered: 28 Oct 2013

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Stanley Kipchirchir Kosgey v Republic

Citation: Stanley Kipchirchir Kosgey V Republic [2013] eKLR

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Abdi Tadicha Galgalo V Republic [2013] eKLR

Case Number: Criminal Appeal 114 of 2011 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Abdi Tadicha Galgalo v Republic

Citation: Abdi Tadicha Galgalo V Republic [2013] eKLR

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Abdirizak Abdi V Republic [2013] eKLR

Case Number: Criminal Appeal 250 of 2009 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Abdirizak Abdi v Republic

Citation: Abdirizak Abdi V Republic [2013] eKLR

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Republic V Miller Ogugu Makori [2013] eKLR

Case Number: Criminal Case 28 of 2013 Date Delivered: 28 Oct 2013

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Miller Ogugu Makori

Citation: Republic V Miller Ogugu Makori [2013] eKLR

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Stanley Ntarangwi V Republic [2013] eKLR

Case Number: Criminal Appeal 186 of 2009 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Stanley Ntarangwi v Republic

Citation: Stanley Ntarangwi V Republic [2013] eKLR

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Republic V Kennedy Ouma Ochieng [2013] eKLR

Case Number: Hccra 185 of 2011 Date Delivered: 28 Oct 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Republic v Kennedy Ouma Ochieng

Citation: Republic V Kennedy Ouma Ochieng [2013] eKLR

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Timothy Koome Muchena V Republic [2013] eKLR

Case Number: Criminal Appeal 227 of 2009 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Timothy Koome Muchena v Republic

Citation: Timothy Koome Muchena V Republic [2013] eKLR

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Jeremiah Mwithalie V Republic [2013] eKLR

Case Number: Criminal Appeal 124 of 2009 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Jeremiah Mwithalie v Republic

Citation: Jeremiah Mwithalie V Republic [2013] eKLR

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Jackson Mugo Nginye V Republic [2013] eKLR

Case Number: Criminal Appeal 65 of 2013 Date Delivered: 28 Oct 2013

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Jackson Mugo Nginye v Republic

Citation: Jackson Mugo Nginye V Republic [2013] eKLR

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Republic V Issa Omar Shede [2013] eKLR

Case Number: Criminal Case 4 of 2012 Date Delivered: 28 Oct 2013

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Republic v Issa Omar Shede

Citation: Republic V Issa Omar Shede [2013] eKLR

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Peter Mureithi Muchiri V Republic [2013] eKLR

Case Number: Criminal Appeal 137 of 2012 Date Delivered: 28 Oct 2013

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Peter Mureithi Muchiri v Republic

Citation: Peter Mureithi Muchiri V Republic [2013] eKLR

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Republic V Francis Kisienya Mumbi [2013] eKLR

Case Number: Criminal Case 51 of 2013 Date Delivered: 28 Oct 2013

Judge: Abdul Majid Cockar, Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Francis Kisienya Mumbi

Citation: Republic V Francis Kisienya Mumbi [2013] eKLR

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M.G.M V Republic [2013] eKLR

Case Number: Criminal Appeal 105 of 2013 Date Delivered: 28 Oct 2013

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: M.G.M v Republic

Citation: M.G.M V Republic [2013] eKLR

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John Mithika V Republic [2013] eKLR

Case Number: Criminal Appeal 113 of 2010 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: John Mithika v Republic

Citation: John Mithika V Republic [2013] eKLR

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Hassan Omar Roba V Republic [2013] eKLR

Case Number: Criminal Appeal 217 of 2009 Date Delivered: 28 Oct 2013

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Hassan Omar Roba v Republic

Citation: Hassan Omar Roba V Republic [2013] eKLR

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Patrick Muna Waweru V Republic [2013] eKLR

Case Number: Criminal Appeal 490 of 2013 Date Delivered: 25 Oct 2013

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Patrick Muna Waweru v Republic

Citation: Patrick Muna Waweru V Republic [2013] eKLR

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Collins Akala Lusayi V Republic [2013] eKLR

Case Number: Criminal Appeal 141 of 2010 Date Delivered: 25 Oct 2013

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Collins Akala Lusayi v Republic

Citation: Collins Akala Lusayi V Republic [2013] eKLR

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Philip Kiprop Komen V Republic [2013] eKLR

Case Number: Criminal Appeal 110 of 2012 Date Delivered: 25 Oct 2013

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Philip Kiprop Komen v Republic

Citation: Philip Kiprop Komen V Republic [2013] eKLR

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Samuel Chelelgo V Republic [2013] eKLR

Case Number: Criminal Appeal 79 of 2012 Date Delivered: 25 Oct 2013

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Samuel Chelelgo v Republic

Citation: Samuel Chelelgo V Republic [2013] eKLR

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Geoffrey Kipkemoi Sigey & 2 Others V Republic [2013] eKLR

Case Number: Criminal Appeal 22,23 & 24 of 2009 (Consolidated) Date Delivered: 25 Oct 2013

Judge: Joseph Kiplagat Sergon, Byram Ongaya

Court: High Court at Kericho

Parties: Geoffrey Kipkemoi Sigey,Richard Kipkurui Langat & Peter Ochieng Oyando v Republic

Citation: Geoffrey Kipkemoi Sigey & 2 Others V Republic [2013] eKLR

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Pius Arap Maina V Republic [2013] eKLR

Case Number: Criminal Appeal 247 of 2011 Date Delivered: 25 Oct 2013

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Pius Arap Maina v Republic

Citation: Pius Arap Maina V Republic [2013] eKLR

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D K T V Republic [2013] eKLR

Case Number: Criminal Appeal No. 53 of 2011 Date Delivered: 25 Oct 2013

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: D K T v Republic

Citation: D K T V Republic [2013] eKLR

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Moses Mutua Matingi V Republic [2013] eKLR

Case Number: Criminal Appeal 491 of 2013 Date Delivered: 25 Oct 2013

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Moses Mutua Matingi v Republic

Citation: Moses Mutua Matingi V Republic [2013] eKLR

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Onesmus Kibet Cheruiyot & 2 Others V Republic [2013] eKLR

Case Number: Criminal Appeal 26, 27 & 28 of 2011 Date Delivered: 25 Oct 2013

Judge: Joseph Kiplagat Sergon, Byram Ongaya

Court: High Court at Kericho

Parties: Onesmus Kibet Cheruiyot, Geoffrey Kipkoech Kirui alias Kimalel & Dennis Kipyegon Yegon v Republic

Citation: Onesmus Kibet Cheruiyot & 2 Others V Republic [2013] eKLR

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George Odhiambo V Republic [2013] eKLR

Case Number: Criminal Appeal 84 of 2012 Date Delivered: 25 Oct 2013

Judge: Joseph Kiplagat Sergon, Byram Ongaya

Court: High Court at Kericho

Parties: George Odhiambo v Republic

Citation: George Odhiambo V Republic [2013] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CRIMINAL APPEAL NO. 84 OF 2012

(BEING AN APPEAL AGAINST THE ORIGINAL CONVICTION AND SENTENCE BY THE HONOURABLE J. NDURURI, PRINCIPAL MAGISTRATE AT KERICHO IN CRIMINAL CASE NO. 517 OF 2012 IN THE JUDGMENT DELIVERED ON 30.11.2012)

GEORGE ODHIAMBO...........................APPELLANT

-VERSUS-

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

(BEFORE HON. JUSTICE J.K. SERGON AND HON. JUSTICE BYRAM ONGAYA ON FRIDAY 25TH OCTOBER, 2013)

JUDGMENT

The appellant is George Odhiambo. He was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code.

The particulars are that on the 23rd day of March 2012 at about 9.30p.m. at camp Steam Estate in Kericho Township in Kericho district within Rift Valley Province, jointly with others not before the trial court, robbed Nelson Magotian Kipkemoi of a mobile phone make Nokia 1280 valued at Kshs. 2,100/=, Kshs. 2,000 and an Equity Bank ATM card and at the time of such a robbery, used actual violence to the said Nelson Magotian Kipkemoi. In alternative, the appellant was charged with the offence of handling stolen property contrary to section 322 (2) of the Penal Code.

In the judgement, the learned trial Magistrate found that the prosecution had proved its case beyond all reasonable doubts and proceeded to convict the appellant as charged in count 1 pursuant to section 215 of the Criminal Procedure Code. The appellant was sentenced to death and has appealed against the conviction and sentence.

The grounds of appeal are that the learned trial magistrate erred both in law and fact:

  1. by basing conviction on unsafe, contradictory and inconsistent evidence of PW1, PW2, PW3 and PW4;
  2. by making a conviction without a finding that there was no documentary evidence to prove possession;
  3. by making a conviction without making a finding that the mode of the appellant’s arrest did not connect him with the alleged robbery; and
  4. by rejecting the appellant’s testimony which was sufficient to secure an acquittal.

On the first ground, the appellant submitted that PW1 testified that the make of the phone robbed from him was Nokia 1280 and the serial number on the receipt was 351524044441115. The court has perused the receipt being exhibit P3 and notes that the serial number is the same only that a 4 is added just before the triple 1 suggesting unexplained amendment of the serial number on the receipt in issue. It is further noted that the additional 4 is conspicuously in a different handwriting from the other handwritten 4s in the serial number. Further, the receipt is issued to “Nelson Makutianowhereas the complainant’s name is “Nelson Magotian Kipkemoi” as per the charge sheet.

The appellant has also submitted that PW3 being the police officer who arrested the appellant found the appellant in possession of a Nokia 1280 which was booked in the occurrence book as IMEI No. 35152404-4441115. In his testimony, he repeats the serial number on the phone as 351524-0444411115 and proceeds to assert, “Yes, it is the same number. The victim told us he was from a bar heading home and that he was attacked by two young men who robbed him.”

The court has looked at the trial court’s record as reproduced above and it is clear that there are inconsistencies in the serial number of the phone in question as well as the owner of the phone. The court notes that it is said by PW3 that the appellant was arrested only a few minutes after the alleged robbery on the night of 23.3.2012 at 9p.m.

The evidence of PW4 the investigating officer is that after arresting the appellant on 23.3.2012 at about 9p.m. he inserted a SIM card in the phone the following day and switched it on. He further testified that from one of the messages he found in the phone he was able to trace the complainant who then produced the receipt bearing the serial number of the phone and which this court has found to be disputable.

The following questions, in the opinion of this court are pertinent and unanswered:

  1. Why did the complainant being a well informed prison warder fail to make a report at the police following the alleged robbery with violence on 23.3.2012 at about 9p.m? The record shows that he had to be traced the following day when he already, in view of the evidence before the trial court, the police officers PW3 and PW4 had found him at the scene of the alleged crime on the night of 23.3.2012.
  2. Why is it that PW4 did not take immediate steps following the arrest of the appellant on 23.3.2012 about 9p.m to insert the SIM card and swiftly make progress in the investigation especially, as alleged, other culprits had just escaped and needed to be apprehended?
  3. PW2 testified that he recalled it was 23.3.2012 at about 8.30p.m and then contradicts himself to say that it was about 9.30p.m. He then proceeds to state that he saw the complainant who was shouting that he was being killed sitting down outside the gate and he was injured. He does not testify the assistance he rendered to the injured complainant but more important from PW2’s evidence, the police officers PW3 and PW4 who arrived at the scene shortly thereafter in 10 to 15 minutes (as per PW3 at page 12 of the proceedings) found the complainant at the scene. The evidence shows that PW4 had to discover the identity of the complainant the following day as earlier explained in this judgment whereas there was ample time and opportunity to know the identity of the complainant at the scene of the alleged offence. Why did PW2, PW3 and PW4 fail to seize the earliest opportunity presented at the scene of the crime to know the identity of the complainant PW1?
  4. It is alleged that PW1 was robbed of a mobile phone make Nokia 1280 valued at Kshs. 2,100/=, Kshs. 2,000 and an Equity Bank ATM card. Why is it that no evidence was provided to the trial court to establish that PW1 owned the Equity Bank ATM card, subject of the alleged robbery?

The court has considered the foregoing unanswered questions and finds that there was no evidence directly linking the appellant to the offence and the circumstantial evidence upon which the conviction was founded was insufficient to sustain the conviction.

The court finds that the appellant has a valid ground of appeal that an inventory of the items found in his possession was not presented to the trial court and the police record on the allegations was not presented to the court to establish the possession as alleged. Thus, this court finds that the record of the occurrence of the alleged crime, in the circumstances of this case, prepared in accordance with section 18 of the Police Act was necessary evidence to establish possession of the Nokia phone in issue. It remains unanswered whether PW1 ever made a report to the police about the alleged robbery with violence. The trial court’s record shows that PW3 and PW4 consistently took initiative to nail the appellant with the commission of the offence in circumstances whereby PW1’s evidence was that he did not recall the identity of any of his assailants. The day following the night of the alleged robbery saw PW1 at work disinterested in the alleged robbery and PW4 testified that on that day he had to go tracing PW1. Such unexplained initiative by PW3 and PW4 and which was not backed by the relevant police records renders the appellant’s evidence in the defence credible; thus, that he did not commit the offence at all, he thought he would be charged with an offence concerning lack of a job card and the reason he appeared in court was because the police officer demanded Kshs. 500 from him but he didn’t give him.

In conclusion, the court finds that there was no sufficient circumstantial evidence before the trial court establishing the offence of robbery with violence to sustain a conviction against the appellant. Accordingly, the court orders that the appellant be released forthwith unless otherwise lawfully held.

Signed, dated and delivered in court at Kericho this Friday, 25th October, 2013.

J.K. SERGON

JUDGE

And

BYRAM ONGAYA

JUDGE

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Republic V Mohammed Mata Barisa [2013] eKLR

Case Number: Criminal Case 35 of 2010 Date Delivered: 25 Oct 2013

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Republic v Mohammed Mata Barisa

Citation: Republic V Mohammed Mata Barisa [2013] eKLR

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Republic V Chengo Nickson Kalama [2013] eKLR

Case Number: Criminal Case 8 of 2011 Date Delivered: 25 Oct 2013

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Republic v Chengo Nickson Kalama

Citation: Republic V Chengo Nickson Kalama [2013] eKLR

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Felix Kosgei Kanda V Republic [2013] eKLR

Case Number: Criminal Appeal 177 of 2011 Date Delivered: 24 Oct 2013

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Felix Kosgei Kanda v Republic

Citation: Felix Kosgei Kanda V Republic [2013] eKLR

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Geoffrey Nyambecha Manyara V Republic [2013] eKLR

Case Number: Criminal Appeal 33 of 2010 Date Delivered: 24 Oct 2013

Judge: Byram Ongaya, Grace Wangui Ngenye

Court: High Court at Kericho

Parties: Geoffrey Nyambecha Manyara v Republic

Citation: Geoffrey Nyambecha Manyara V Republic [2013] eKLR

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