Appeal against death sentence for robbery with violence upheld

High Court in Kiambu has sustained a death sentence imposed on a man who violently robbed his nephew in Gatundu South sub-county in 2013.

George Mwaura Kinyita with his accomplice robbed the complainant while he prepared to close a family kiosk. The duo jointly tied him with ropes as the accomplice guarded and assaulted him while the appellant ransacked the shop and stole the money.

Mwaura had been charged that on July 13, 2013 at Gatei village in Gatundu South jointly with others not before court and being armed with pangas robbed Samuel Mwaura Kariuki of Sh.70, 000 and used actual violence to the complainant.

Through advocate Kaingati Kamonjo, he filed four grounds of appeal in February 2017 in which he charged that the trial magistrate did not consider all witness statements, and that he failed to observe contradiction in the evidence.

He also accused the prosecution of not proving their case beyond reasonable doubt and that he was not subjected to proper identification parade.

He submitted that only the complainant PW 2 was an eye witness and that four others did not testify. He also noted that the witness was not corroborated and that there was no proof that the Sh 70,000 existed and that it was stolen.

On the issue of sentencing him to death, the appellant noted that the threshold for such conviction must be very high.

Perusal of the evidence does not disclose proper or clear analysis of the evident adduced by the witness. This does not meet the minimum standard to sentence one to death, Mr. Kamonjo therefore pleaded with the court to allow the appeal and set his client free.

The respondent through senior state counsel Noel Mutheu opposed the appeal saying the complainant was accosted by two people. He submitted that there were threats of violence and that he was assaulted by the person who was left guarding him. Though it was at night, he said there was full moon and a hurricane lamp in the shop and that despite them masking themselves, he was able to see the walking style and on hearing his voice recognised it was his relative.

In his observation, Justice Nagillah said the court, after going through proceedings of the lower court, issues for determination were; was the appellant duly recognised and identified; was threats on violence meted out on the complainant and was anything robbed from him?

Justice Nagillah noted that on the material day at 9 o’clock at Gatei village, the complainant who had been selling in their family kiosk was accosted by two people as he prepared to close shop. They demanded money with menace and tied him outside while his accomplice guarded him. During this time, he continually assaulted him with a panga on his hands and legs and that the appellant stole Sh70, 000.

A medical doctor also confirmed and corroborated the injuries suffered by the complainant and confirmed the injuries were caused by ropes.

Justice Nagillah summed up the judgement that he was satisfied that the elements of robbery were proved beyond reasonable doubt, there were threats of violence in which the complainant was assaulted and that he lost the money during the robbery.

The appeal was heard by Justice Nagillah during the Judicial service week when visiting Judges are deployed to other courts to help clear pending appeal cases. It was delivered by Kiambu High court Judge Joel Ngugi as Nagillah has already returned to his duty station at Nyamira law courts. He was given 14 days to appeal.

Source: Kenya News Agency