Yaa v Republic [2006] KECA 343 (KLR) Mwalimu Karisa Yaa v Republic [2006] eKLR Neutral citation: [2006] KECA 343 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA CRIMINAL APPEAL 246 OF 2004 PK TUNOI, EM GITHINJI & WS DEVERELL, JJA JANUARY 27, 2006 BETWEEN MWALIMU KARISA YAA ...................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal from a judgment of the High Court of Kenya at Mombasa (Mwera & Maraga, JJ) dated 30th November, 2004 in HCCRA No 280 of 2001) JUDGMENT 1. Mwalimu Karisa Yaa was after trial convicted of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death. The charge against him and four others who were acquitted was that on 20th January, 2000 at 8.30 pm jointly robbed Joseph Katana Hamisi of cash, cigarettes and other items all valued at Shs 29,000/= and at or immediately before or after that robbery they wounded Hamisi on the head, hands and ribs with a panga. 2. The appellant’s appeal to the High Court of Kenya at Mombasa (Mwera & Maraga, JJ) was dismissed on 30th November, 2004 and hence this second appeal. 3. The facts relied upon by the prosecution may be briey stated thus. The complainant Katana Hamisi (PW1) is a primary school teacher at Mwakala. He also together with his wife operated a grocery shop at a local market centre. On 19th January, 2000 at about 9.00 pm PW1 was at the home of his brother Gabriel Hamisi (PW2) chatting by the bonre when suddenly the appellant, a person known to them, emerged from a nearby bush and greeted them. The appellant then told PW1 that he had a task to do and commanded PW1 to leave the food he was eating and follow him. PW1 hesitated and the appellant proceeded to produce a panga and advanced towards him. PW1 and his brothers ran away. The appellant chased PW1 and when he caught up with him he felled him. He then viciously cut him inicting serious injuries all over his body. A medical report tendered in the trial court as an exhibit https://new.kenyalaw.org/akn/ke/judgment/keca/2006/343/eng@2006-01-27 1
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revealed that PW1 suered several deep cut wounds in the skull, rib cage, the knee, hands and the wrist resulting in the severance of nerves and tendons. The injuries were classied as maim. 4. It would appear that simultaneously as PW1 was being attacked a group of ve thugs were robbing Josephine Kazungu (PW3), the wife of PW1, of cash and shop goods at the local market centre not far away from the scene where PW 1 was being attacked. The trial court acquitted the persons who robbed PW3 on the ground that their identication was in doubt. 5. Mrs Abuodha for the appellant attacked his conviction on the ground that the appellant’s identication was not positive. However, in our view, we think that the conviction on a charge of robbery with violence in this instance can only be sustained if it can be established beyond all reasonable doubt that there was a nexus between the attack upon the appellant and the robbery on the shop or that the appellant was part of the gang that also robbed the shop and had acted in concert with them. 6. There is ample evidence on record as adduced by PW1 and his brother PW2 that the appellant whom they knew very well attacked PW1 causing him grievous injuries. It is also accepted by the two courts below that the home of PW2 where there was a bonre was a distance away from the shop where PW 1 ’s wife was. Further, it is admitted that when PW 1 was frog-marched to the shop they found it already ransacked. In the circumstances, it cannot be surmised that the appellant also took part in the robbery. 7. An issue then arises whether the attack upon PW1 was in furtherance of the robbery. There is no doubt whatsoever that the assault upon PW 1 was immediately before the time of such robbery but it cannot be said with any degree of certainty that the attack was connected with the robbery which was a distance away. 8. In the circumstances, we think, that it is unsafe to uphold the conviction on the charge of robbery with violence contrary to section 296 (2) of the Penal Code. We therefore quash it. 9. As the oence of grievous harm has been proved to have been committed by the appellant, we hereby under the provisions of section 361 (4) of the Criminal Procedure Code convict the appellant of grievous harm contrary to section 234 of the Penal Code and sentence him to twelve (12) years imprisonment to run from 19th July, 2001. DATE AND DELIVERED AT MOMBASA THS 27TH DAY JANUARY, 2006 . P.K. TUNOI …………….. JUDGE OF APPEAL E.M. GITHINJI …………….. JUDGE OF APPEAL D.W. DEVERELL …………….. JUDGE OF APPEAL I certify that this is a true copy of the original Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/keca/2006/343/eng@2006-01-27 2
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