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|Case Number:||Criminal Appeal 107 of 2011|
|Parties:||John Kaboro Kimonjo v Republic|
|Date Delivered:||19 Dec 2013|
|Court:||High Court at Nyeri|
|Judge(s):||Rose Edwina Atieno Ougo, Nelson Jorum Abuodha|
|Citation:||John Kaboro Kimonjo v Republic  eKLR|
|Case History:||(Appeal From Conviction And Sentence In Murang'a Senior Resident Magistrate's Court (Hon. E.J Osoro (Srm) Delivered On 9th June, 2011).|
|History Magistrate:||E.J Osoro|
|History Advocates:||Both Parties Represented|
|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 AT NYERI
CRIMINAL APPEAL NO. 107 OF 2011
JOHN KABORO KIMONJO......................................APPELLANT
(APPEAL FROM CONVICTION AND SENTENCE IN MURANG'A SENIOR RESIDENT MAGISTRATE'S COURT (HON. E.J OSORO (SRM) DELIVERED ON 9TH JUNE, 2011).
JUDGMENT OF THE COURT
a) The trial magistrate erred in convicting him to suffer death sentence which contravenes the supreme law.
b) That she erred in failing to find that the charges were fabricated against him due to a deal gone sour.
c) That the trial magistrate erred in law and fact in failing to find that his fundamental rights were violated in that he was tortured physically and psychologically and was not accorded any medical attention.
d) That the trial magistrate erred in law and in fact in disregarding his defence in contravention of section 169(1) of the CPC.
On the night of 8/5/2010 PW1 was asleep at his house when he heard a bang, he got up and sat on his bed to listen whether his children were fidgeting, he saw a flash light, then a continuous flash light. PW1 inquired who it was then the people from outside answered that they were thugs and they demanded for money. PW1 answered them back that he did not have the money, PW1 asked his wife to scream which she did, the thugs ordered to her to be silent which she obliged. PW1 armed himself, the thugs hit the window breaking the glass. PW1 and his family raised alarm, after a loud bang things went silent. PW1 heard his brother PW1 calling him out that he had caught one of the thieves.
PW1 got out and found PW2 lying on one man. Next to him he saw an axe. PW2 and the man were in a struggle, PW1 went to assist his brother as the robber was armed with a panga. The evidence of PW1 and PW2 was that the man they intercepted and arrested was the 1st accused. The evidence of PW1 and PW2 is that in the struggle accused wounded both of them. The evidence of PW2 one Simon Mwangi Kariuki was that on the night of 8th and 9th May at 3.00 am he was asleep at his house when he heard a bang at his brother (PW1's) house. Then he heard PW1 and his family screaming. PW2 armed himself with a jembe handle and got out, he saw a man running at a distance. When he got closer PW2 ordered him to stop, the person flashed a torch at PW2 and PW2 saw that the man was armed with an axe which he raised up to cut PW2.
PW2 hit the man with the jembe handle, the axe and the torch fell down. PW2 got hold of the man and they began to struggle until PW1 arrived to assist PW2. After much struggle PW1 and PW2 overpowered the man whom they both identified as accused 1, according to the complainant they struggled with accused 1 for about 15 minutes from the compound until the coffee farm when why managed to outweigh the 1st accused and took him back to the homestead and tied him to an electricity pole.
“As for the 1st accused there is no dispute that he was at the scene, he admits being there and this is the place where the investigating officer PW5 found him, the only issue for this court's determination is whether the accused was intercepted by PW2 as he fled from the scene or he was invited by PW1 to his home and he (PW1) later turned against him.
If indeed the 1st accused was invited by PW1 to his home as per his version then it means only the 1st accused was assaulted. However from the evidence of PW5 and the clinical officer he treated PW1 and PW2 of injuries they had sustained...If at all PW1 and PW2 implicated the 1st accused then PW1 could not be found with the injuries they sustained. The evidence by PW1 and PW2 is well corroborated by that of PW3, PW4 and PW5 and I am certain that all the prosecution witnesses were candid...The allegation that PW1 and PW2 assaulted the 1st accused and that PW1 ripped off his own window grill is a made up story....Accused 1 struck this court to be less candid and was evasive...I have looked at his submission and in a nut shell I find that the defence by 1st accused is rejected and dismissed. The 1st accused was caught red handed and intercepted by PW2 as he fled from the scene.
“...the Constitution, both of the former epoch and the current, clearly envisage that the right to life is not absolute, the state can limit it in accordance with any written. The law in this case is the Penal Code.”
(1) Every person has a right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. (emphasis ours)
Dated and delivered at Nyeri this 19th day of December, 2013.
Delivered in open Court in the presence of......................... for the Appellant and.................................... for the Republic.