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|Case Number:||Criminal Appeal 501 of 2010|
|Parties:||Samwel Barasa Juma v Republic|
|Date Delivered:||11 Nov 2011|
|Court:||Court of Appeal at Eldoret|
|Judge(s):||Emmanuel Okello O'Kubasu, Alnashir Ramazanali Magan Visram, John walter Onyango Otieno|
|Citation:||Samwel Barasa Juma v Republic  eKLR|
|Case History:||Appeal from conviction and sentence of the High Court of Kenya at Kitale (Ombija & Mwilu JJ) dated 16th December 2010 in H.C.CR.A NO 43 of 2007|
|Parties Profile:||Individual v Government|
|History Docket No:||43 of 2007|
|History Judges:||Nicholas Randa Owano Ombija, Philomena Mbete Mwilu|
|History County:||Trans Nzoia|
|Case Outcome:||Appeal Allowed|
|Disclaimer:||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|
SAMWEL BARASA JUMA.....................................................APPELLANT
The appellant, SAMWEL BARASA JUMA, was arraigned before the Chief Magistrate’s Courtat Kitale on 18th May, 2006 in Criminal Case no 1648 of 2006 charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were as follows:-
The appellant denied the charge and his trial commenced on 14th September, 2006 before PN Gichohi ( Ag Principal Magistrate). The prosecution called the complainant Agneta Onyango Menya (PW1) who testified that on the material day the appellant violently attacked her with a panga and in the process demanded shs. 3,500/-. She (PW1) sustained a cut on three of her left fingers. She lost the shs.3,500/- which the appellant had demanded. She was rushed to Maili Saba Hospital for treatment. In the course of her evidence in chief the complainant stated, inter alia:-
“Then on 11th (the following day) police officers came for me from my house. They told me that they had arrested the suspect. They wanted me to go and identify if he was the one. I was taken to Moi’s Bridge Police Station. I did not see him. On 14/5/2006 I went again to Moi’s Bridge. The accused person was brought to me. I was able to identify him. I recorded a statement. The accused is in the dock. I am certain he is the one who robbed me. He had come to me during the day. I was able to identify him.”
There was the evidence of F.E (PW2) a standard 3 boy who testified that on the material day he had seen the appellant who asked him (PW2) whether he needed somebody for weeding of maize.
The appellant was arrested by Cpl John Otieno (PW3) whose evidence on how he effected the arrest was as follows:-
When put on his defence the appellant gave a sworn statement in which he said that he had taken his clothes to the tailor and while he sat waiting police officers came and arrested him. He was taken to Moi’s Bridge Police Station where he saw a woman while a police officer hit him. The appellant denied having been involved in the commission of the offence.
In a judgment delivered on 31st July 2007 the learned trial magistrate convicted the appellant and stated:-
Being aggrieved by both conviction and sentence, the appellant filed an appeal to the High Court. The learned Judges of the High Court (Ombija & Mwilu J) considered the appellant’s appeal and found it unmeritorious. In their judgment delivered at Kitale on 16th December 2010 the learned Judges said inter alia:-
“We have evaluated the evidence of the prosecution vis-a-vis that of the defence. We have also come to the conclusion that the case against the appellant was proved beyond any reasonable doubt. For that reason we confirm the conviction and sentence. In the result we dismiss the appeal in its entirety.”
2. THAT: Your lordships, the appellate Judges erred in law because their findings were against the weight of the available evidence to prove the nature of this case.
3 THAT: Your lordship, the appellate Judges erred in law when they failed to appreciate that the evidence of a single witness in support of appellant’s conviction is purely insufficient.
This is the appeal that came up for hearing before us on 19th September 2011 when Mwinamo Delmas appeared for the appellant while Mr. A.O. Oluoch Senior Deputy Prosecution Counsel appeared for the State.
In his submissions Mr. Mwinamo argued the first three grounds of appeal together and these related to the issue of identification. He submitted that the complainant confirmed that she did not know the appellant and that the appellant was shown to her at the police station. It was further submitted that E (PW2) was not at the scene where the robbery took place.
As regards the fourth ground of appeal Mr Mwinamo submitted that there was no weapon recovered to prove that the complainant had been injured.
Finally, Mr Mwinamo submitted that it was not established beyond doubt that the appellant committed this offence.
We have considered the rival submissions in this appeal and we are of the view that the main issue is identification. In ANJONONI & OTHERS v THE REPUBLIC  KLR 59 this Court said:-
“The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused.”
The evidence of the young boy E (PW2) did not advance the prosecution case since all that this witness saw was the appellant with another person going towards the complainant’s house and after a short while the appellant was back looking for a job – weeding of maize. Later the appellant was seen “running through Simeon’s farm.” Taking all the foregoing into consideration, we are not satisfied that the prosecution had proved beyond doubt that the appellant was properly identified as the one who had violently robbed the complainant on the material day. The evidence of the complainant in so far as identification of the appellant was concerned was weakened by the fact that the appellant was shown to her at the police station. What the police should have done was to conduct a proper identification parade rather than call the complainant and point out the appellant to her.
In RORIA v R  E.A. 583 at p.584 the predecessor of this Court made the following observation:-
The facts of this appeal fit in the foregoing observation.
In view of the foregoing, we are not satisfied that the appellant’s identification was proved beyond reasonable doubt. Consequently, this appeal is allowed, the conviction quashed and the sentence of death set aside. The appellant shall be set free forthwith unless otherwise lawfully held.
Dated and delivered at Eldoret this 11th day of November, 2011.