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|Case Number:||Criminal Appeal 184 of 2009|
|Parties:||CYRUS KAYAYI ONZERE v REPUBLIC|
|Date Delivered:||07 Dec 2011|
|Court:||High Court at Kakamega|
|Judge(s):||Luka Kiprotich Kimaru, Beatrice Thuranira Jaden|
|Citation:||CYRUS KAYAYI ONZERE v REPUBLIC  eKLR|
|Case History:||(Appeal against conviction and sentence of the judgment of [MR. L. O. ONYINA, SRM] from the original Criminal Case No. 727 of 2008 in the Senior Resident Magistrate’s Court Vihiga)|
|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 NO. 184 OF 2009
(Appeal against conviction and sentence of the judgment of [MR. L. O. ONYINA, SRM] from the original Criminal Case No. 727 of 2008
in the Senior Resident Magistrate’s Court Vihiga)
V E R S U S
J U D G M E N T
In his petition of appeal, the appellant raised several grounds of appeal challenging his conviction by the trial magistrate. The said grounds of appeal may be summarized as thus; the appellant was aggrieved that he had been convicted on the evidence of identification that cannot stand up to legal scrutiny. In particular, the appellant faulted the trial magistrate for relying on the evidence of identification which was made in difficult circumstances that were not conducive for positive identification. In this regard, the appellant took issue with the fact that the trial magistrate had not taken into account that there was no sufficient light which could have enabled the complainant to be positive that he had identified him. The appellant was aggrieved that the trial magistrate had convicted him on the basis of the evidence of recovery of recently stolen goods when it was not established by the prosecution that he was exclusively in control of the house where the stolen item was recovered. He faulted the trial magistrate for not taking into account the totality of the evidence adduced which in actual fact exonerated him from the crime. The appellant was finally aggrieved that the trial magistrate had not taken into consideration his alibi defence before reaching the erroneous decision to convict him. For the above reasons, the appellant urged the court to allow his appeal, quash his conviction and set aside the sentence that was imposed upon him.
Before giving reasons for our decision, we will set out the facts of this case, albeit briefly. On 14th May 2008, at about 2.00 a.m., PW1 Gerald Musalia (the complainant) was asleep in his house at Mudete village. At that time, he was woken upto from his sleep by people who were already inside his house. The people entered his bedroom and ordered him to bend down and keep quiet. According to the complainant, his assailants secured his co-operation by placing a panga on his neck. They also threatened to kill him. The complainant testified that as the robbers were ransacking his house, they were using torches. At one point, the flashlight of the torch was reflected on the screen of the television. The complainant testified that he was able to identify two of the robbers as the appellant (he identified him by name because he was his neighbour) and one Elvis Vijeri Azua. He further testified that he was able to identify the appellant by his voice when he ordered him around during the course of the robbery. The appellant was robbed of two mobile phones, make Nokia 3160 and 1110, VCD make Royaltek, Leather shoes (boots), five trousers, four shirts, one T-shirt, a brief case, three caps, driving license, VICD tapes, car radio make Artech, a belt and a speaker. All the above properties were valued at KShs.46,000/=.
When the appellant was put on his defence, he denied that he had committed the offence. He adduced alibi defence. He claimed he was in Kapsabet when the robbery took place. He explained the circumstances of his arrest in detail. He denied the thrust of the prosecution’s case which was to the effect that the driving license was recovered in his constructive possession. He testified that he had no grudge with the complainant. The thrust of his defence was that he was a victim of mistaken identity.
We have carefully considered the submissions made in the appeal. We have also re-evaluated the evidence that was adduced before the trial magistrate. It was apparent that the appellant was convicted on the basis of the evidence of identification and that of recent possession. As regard the evidence of identification the complainant adduced evidence which was to the effect that he had recognized the appellant and one Elvis during the course of the robbery. Although it was at night, and was dark, the complainant testified that he recognized the appellant from his reflection on the television screen when the appellant pointed the torch at the said screen. The complainant further testified that he was able to identify the appellant by his sound of voice. From the evidence adduced, it was clear that the complainant and the appellant were neighbours. No grudge existed between the complainant and the appellant. Having re-evaluated the evidence of identification adduced in this case, we have no doubt in our minds that the complainant identified the appellant during the course of the robbery. As required by the law, we have cautioned ourselves of the danger of convicting the appellant based solely on the evidence of identification. However, we are convinced of the credibility of the complainant’s testimony. The complainant told the trial court that he was also able to identify the appellant by his voice. The Court of Appeal in Libambula vs Republic  KLR 683 held that evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In the present appeal, it was clear that the appellant was intimately known to the complainant prior to the robbery incident to an extent that the complainant was certain that it was the voice of the appellant which ordered him around during the course of the robbery. We are satisfied that the prosecution adduced sufficient evidence to establish the charge against the appellant on the evidence of identification.
The upshot of the above reasons is that the appeal fails. It is hereby dismissed as it lacks merit. The conviction of the appellant by the trial magistrate is upheld. The sentence is confirmed. The prosecution established its case against the appellant to the required standard of proof beyond any reasonable doubt on the charge of robbery with violence contrary to Section 296(2) of the Penal Code.
Dated at Kakamega this 7th day of December 2011.
J U D G E