|Criminal Appeal 7 of 2009
|RAMADHAN ALI SAKWA v REPUBLIC
|08 Apr 2011
|High Court at Kitale
|Martha Karambu Koome, Festus Azangalala
|RAMADHAN ALI SAKWA v REPUBLIC  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT F KENYA
2. The appellant was tried, convicted and sentenced to death. Being aggrieved by the conviction and sentence, he has appealed. In addition to the grounds set out in the petition of appeal, the appellant also filed written submissions. The appellant has challenged the decision of the learned trial magistrate on the grounds that the quality and the quantity of the prosecution evidence was wanting. The identification was not positive because the prevailing circumstances when the offence took place were difficult for a positive identification. Moreover, their were on contradictions on whether the complainant especially PW1 who was the victim of robbery and rape recognized the assailant. The offence took place at 10.00 p.m. PW1 who was the star witness testified that she was able to identify the appellant through the moonlight which she confirmed was faint. PW1 said she was able to recognize the appellant when she was removing money and the appellant flashed a torch and that was how she was able to identify him.
4. This being a first appeal, this court is mandated to re evaluate the evidence before the trial court and arrive at its own independent decision on whether or not to uphold the decision of the learned trial magistrate. This court must however bear in mind that it ever saw or heard the witnesses and give due allowance for that. In brief summary of this case, on 2nd July, 2008 at about 10.00 p.m. D.K.W, PW1, and her husband J.W.M were sleeping with two of their children in their house which was at [particulars withheld]. They heard a knock on the door and when they enquired the assailants said they were police and when PW1 peeped through the curtain she saw six people standing outside their house. They opened the door, three people entered while two remained outside. The assailants demanded to be given money and mobile phones. They started assaulting PW2, PW1 told the assailants that she would give them money and while opening her pulse to remove the money, the appellant flashed a torch and she recognized the appellant. The assailants dragged PW1 out of the house and locked the door from outside. PW1 tried to scream but she was hit with a hammer. She was dragged outside and raped by all the thugs. The assailants stole items which are stated in the charge sheet but the items were never recovered.
6. The police started looking for the suspects. After six days the complainant reported to the police that she had seen the appellant. The police rushed to the place where the appellant was reportedly seen and arrested him. The appellant was put on his defence and denied having committed any offence. He stated that on the day he was arrested there were people gambling when a young child was rude to him. He chased the child but the mother (PW1) of the child accused him of having assaulted her husband. After about half an hour, the police came and arrested him and charged him with the offence of robbery with violence. The learned trial magistrate was satisfied that the prosecution’s case was proved to the required standard because PW1 and PW2, the victims of the robbery were able to recognize the appellant using the light from the torch that the robbers had. The appellant was convicted of the 1st count and sentenced to death while the sentence in respect of the 2nd count was held in abeyance.
…”we rushed there and found the two complainants a husband and a wife. They told us they had been robbed by about six men who had crude weapons posing as police officers. The report had been booked – according to the complainant they had not given the name of the suspects…The next day around 11.00 a.m. they came to the station and the complainant stated that they had recognized one of the suspects among the six. The name was Ramadhan Ali Sakwa and they said they knew his voice and physically and that another suspect directed a face of a torch and they recognized them. They said they had stolen a number of things including cash 515/=, a radio, a coat, panga, black leather shoes, 2 slasher, one hammer, all of this estimated to a value of Ksh. 3,400/=.”
According, we allow this appeal, quash the conviction and set aside the death sentence. The evidence in respect of the 2nd count was not evaluated by the trial court. However, for the same reasons that we have found regarding the identification of the appellant would also affect the second charge. We also quash the conviction in respect of the 2nd charge. Unless the appellant is otherwise lawfully held, he is to be set at liberty.