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|Case Number:||Criminal Appeal 53,54,55,61&62; of 2011|
|Parties:||FREDRICK MUTHIKE MWANGI,SIMON GACHANJA MAINA,PAUL GICHIRA MUTUGI,MAGDALENE WANJIKU KARIUKI &BEATRICE; WAIRIMU MAINA v REPUBLIC|
|Date Delivered:||21 Dec 2011|
|Court:||High Court at Embu|
|Judge(s):||Hedwig Imbosa Ong'udi|
|Citation:||FREDRICK MUTHIKE MWANGI & 5 Others v REPUBLIC  eKLR|
|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|
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NOS. 53,54,55,61&62 OF 2011
(From the conviction and sentence by J.N. MWANIKI Senior Resident Magistrate at Baricho in Criminal Case No. 1269 of 2010 on 7th April, 2011)
J U D G M E N T
The 1st, 2nd, 3rd, 4th & 5th Appellants herein were the 1st, 4th, 5th, 2nd & 3rd accused persons respectively in Baricho Senior Resident Magistrate Court vide Criminal Case No. 1269 of 2009. They faced two counts viz:
They were aggrieved by the convictions and filed the present appeals which have been consolidated.
The grounds of appeal raised are:
Mr. Utuku in his submissions reiterated the above grounds. He said that no names were mentioned when the offence occurred. The allegation by the Appellants that grudges exited was never investigated. PW4 produced photos yet he was not the scenes of crimes officer. HCCRA NO. 153/06 KISUMU, CALEB OSAWA OGOLLA VS REPUBLIC. He also said the offence occurred at night. There was mention of moonlight and torch light but it was not stated how intensive this light was. He cited the case of STEPHEN KIBUTHA M’MWONGO & ANOTHER VS REPUBLIC CRA NOS. 357 & 359/09 AT NYERI to support the point on light.
This being a first appeal this court has a duty to re-evaluating the evidence and arriving at its own conclusion as was held in the case of ODHIAMBO VS REPLUBLIC  1 KLR 564. In the same case it was held that the court was under no obligation to allow an appeal simply because the stat is not opposed to the appeal
The prosecution case had been that on 6/12/09 11p.m. Jecinta Wairimu Kiti (PW1) received a telephone call from a neighbor Kellen Njeri who informed her that their house was on fire. PW1 was away in Nakuru but her husband (PW3) and son (PW2) were at home. Back at home PW2 and PW3 testified that the Appellants came there. The 2nd Appellant had a panga, while 5th Appellant had a knife. The 2nd Appellant was demanding for a phone he had allegedly left there. The 2nd and 5th Appellants aimed their weapons at PW2. 1st and 5th Appellants poured paraffin on their houses while 2nd Appellant lit the match box. PW1’s house was torched. When the panga and knife were aimed at him he blocked them. He was injured on the hand and stomach.
The Appellants had each given an unsworn statement. 1st Appellant raised an alibi saying he came home on 7/12/2009 at 8 a.m. PW2 came to borrow his bicycle to assist him go to Sagana to report the arson. He was arrested together with his wife (4th Appellant) and sister in law (5th Appellant). 2nd Appellant said both complainants were his neighbours. He denied any knowledge of what happened on 6/12/2009 and said he was arrested on 25/3/2010.
4th Appellant gave similar evidence to that of her husband (1st Appellant).
5th appellant said she learnt of this incident on 7/12/2009. She was arrested on 9/12/2009.
There is no dispute that the complainants and the Appellants are neighbours and hence people who know each other very well. Mr. Utuku raised an issue on the role of hostile members of the public and grudges between the parties. It’s only PW1 at page 6 line 5 who talks of a hostile crowd who were even shouting at her. This was the next day after the incident. It’s not clear what role was to be investigated by the crowd. The issue of grudges was only raised by the 5th Appellant in cross examination of PW2. PW2 admitted there were grudges between PW2’s family and that of the 5th Appellant. In cross examination of PW3 by the others, the former denied the existence of any grudges.
Further in their defence none of the Appellants raised anything about grudges. Even the 5th Appellant never pursued it in her defence. Had it been anything serious it would have come up strongly in the defence case.
“There was moonlight and I had a torch.”
“Recognition may be more reliable than identification of a stranger but mistakes in recognition of close relatives and friends are sometimes made.”
The lighting that enabled PW2 and PW3 to identify the arsonist was not properly explained.
And finally is he grievous omission by the learned trial magistrate to make a Ruling on the evidence adduced by the prosecution under Section 210 of the Criminal Procedure Code. Once the prosecution closes its case, the court is enjoined to evaluate the evidence and make a Ruling on whether a prima facie case has been made against the accused or not before placing one on his/her defence. The state readily conceded to the Appeal on this ground alone.
For the reasons indicated above I find that this appeal must succeed. I quash the convictions and set aside the sentences. The Appellants to be set free unless held under another lawful warrant.