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|Case Number:||Criminal Appeal 20 of 2012|
|Parties:||Vura Mwachirumbi v Republic|
|Date Delivered:||19 Dec 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Atieno Ang'awa, Martin Muya|
|Citation:||Vura Mwachirumbi v Republic eKLR|
|Case History:||(From Original Conviction and Sentence in Criminal Case No. 859 of 2010 of the Principal Magistrate’s Court at Kwale – E. K. Usui Macharia, PM)|
|History Docket No:||Criminal Case No. 859 of 2010|
|History Magistrate:||E. K. Usui Macharia|
|Case Outcome:||Appeal dismissed|
|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|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. 20 OF 2012
(From Original Conviction and Sentence in Criminal Case No. 859 of 2010 of the Principal
Magistrate’s Court at Kwale – E. K. Usui Macharia, PM)
VURA MWACHIRUMBI …………….………………….…………APPELLANT
V E R SU S
REPUBLIC ……………………………………………………. RESPONDENT
“…. to reconsider the evidence, evaluate it itself and draw its own conclusion in deciding whether the judgment of the trial Court should be upheld …”
“I then saw it was Vura first accused (appellant) a person I know very well as he is a neighbour in the area. He held a panga and iron bars. He said I had to produce money.”
“I saw the person they were calling Kimani was Vura (Appellant) who does casual work for us. I know him well. … I even remember his clothes a blue T-shirt and shorts. He had his usual black shoes and his usual cap.”
This witness stated that she was able to see the appellant because the intruders had very bright torches.
“We agree that this is the correct proposition of the law. Indeed, as pointed out in JOSEPH ONYANGO OWUOR & CLIFF OCHIENG ODUOR V R (Supra) the standard form of a charge, contained in the Second Schedule of the Criminal Procedure Code sets out the charge of robbery with violence under one provision of law, and that is Section 296. We reiterate what has been stated by this Court in various cases before us: the offence of robbery with violence ought to be charged under Section 296(2) of the Penal Code. This is the section that provides the ingredients of the offence which are either the offender is armed with a dangerous weapon, is in the company of others or if he uses any personal violence to any person.
The offence of robbery with violence is totally different from the offence defined under Section 295 of the Penal Code, which provides that any person who steals anything, and at, or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or to property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under Section 295 and 296(2) as this would amount to a duplex charge.”
That holding in our view puts to rest the Appellant’s submission on the charge.
by the prosecution. The issue of voice recognition was the subject of a Court of Appeal decision in the case CHOGE -VS- REPUBLIC (1985)KLR. The Court of Appeal considered the admissibility of voice identification in that case and held-
“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 receiving such evidence, care would be necessary to ensure that it was the Accused person's voice that the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it”.
The Court in the case NJERI -VS- REPUBLIC  KLR 156 responded to submissions that voice identification was less satisfactory by stating-
“Mr. Otieno has submitted that identification by voice is less satisfactory than visual identification. In our view it can be equally safe and free from error, more so if the identification takes place at night. We agree with the two lower courts that in the particular circumstances of this case, the appellant and the complainant being familiar with each other for many years, the possibility of error was excluded.”
Dated and delivered at Mombasa this 19th day of December, 2013.
MARY KASANGO M. MUYA