REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Appeal 312 of 2004 MWABENGA ALFAN MWAMZIMBO…....…………….APPELLANT -ANDREPUBLIC ………………………………………..….RESPONDENT (An appeal from the judgment of Principal Magistrate Mrs. L. N. Mbatia dated 7th December, 2004 in Criminal Case No. 266 of 2004 at Kwale Law Courts) JUDGMENT We have considered the facts of this case, against the background of the charges of robbery with violence which had been brought against the appellant. It is clear that under S.296(2) of the Penal code (Cap.63, Laws of Kenya), certain essential conditions have to be satisfied for a finding to be made that there has been a robbery with violence; these are: Use of violence, being armed, and being in numbers while attacking the complainant. From the facts, and from the submissions of counsel, it is not clear that those conditions were satisfied; and therefore there was no basis for charges of robbery with violence. Learned Counsel Mr. Onserio has also brought to this court’s attention certain shortcomings in respect of identification at the material time. We came to the conclusion that proof beyond reasonable doubt was not achieved. We allow this appeal, against both conviction and sentence. We order that the appellant shall forthwith be set at liberty, unless otherwise lawfully held. DATED and DELIVERED at MOMBASA this 8th day of September 2009. M.K. IBRAHIM JUDGE J.B. OJWANG JUDGE
A note on accuracy. These pages are generated automatically from our AI-written case briefs and have not been checked by a lawyer. Case titles and citations come from Kenya Law; the counts, topics, propositions and “treatment” labels are derived from the briefs and can be incomplete or wrong. Use them as a research aid and always read the original judgment before relying on anything here. This is not legal advice.