REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Criminal Appeal 66 of 2009 KOMOLE MAIWA LOONIRKO :::::::::::::::::::::::::::: APPEALLANT =VERSUS= REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT (Appeal from the decision of Hon. H.M. Nyaga ESQ. Senior Resident Magistrate delivered on 21st April, 2009 at the Senior Resident Magistrate’s Court at Kabarnet in Kabarnet SRM.CRC. No. 425 of 2008 on conviction and sentence) JUDGMENT I. Background 1. In this Criminal Appeal, the Appeallant appeared before the Senior Magistrate’s Courts at Kabarnaet and was charged with the offence of : I. Robbery With Violence Contrary to Section 296 (2) of the Penal Code The Particulars of offence being: That on the 22nd November 2007 at Kaiabata Location, in Baringo District within the Rift Valley Province jointly with others not before Court while armed with a dangerous weapon namely an AK 47 riffle robbed Rael Reriki Rotich of 83 goats all valued at Kshs 100,000/= and at immediately before or immediately after the time of such robbery wounded Michael Komen. 2. A Second Count was preferred being: II. Stealing of Stock Contrary to Section 278 of the Penal Code. The Particulars of Offence being: On the 5th day of June 2008 at Loiwat Location Baringo East District within the Rift Valley Province, jointly with others not before Court stole one goat valued at Kshs 2,000/= the property of Tapegwang Lokomolia 3. The Appeallant Original Accused, pleaded not guilty to both counts on 22nd July 2008. His case was set down for trial in which evidence was disclosed how the Complainant P.W.4 had hired the Appeallant as a herds boy. On the night of 21/22 November 2007, she heard noises coming from the goat pen. She kept quiet till the noise ceased. After an
page 1 of 3
hour, she went out only to find all 83 goats had been stolen. 4. The Assistant Chief P.W.3 on receiving this information notified the police who gave pursuit. One of the police P.W.1 saw the Appeallant who shot at him then fled leaving the goats behind. 5. The Appeallant was arrested and charged. 6. In his defence the Appeallant stated that he was at the market centre to buy flour. He was informed that he was wanted at the police station. He was questioned and charged with the offence. He denied that he was a robber. 7. The Trial Magistrate found that according to the Gathuri Njuguna – vrs Republic (1965) EA 583 Case that to prove Robbery it must be committed openly and in the presence of others. The case in question showed that the Appeallant ought to be charged with stock theft. The Appeallant was convicted on Count II for stock theft Contrary to Section 278 of the Penal Code and Sentenced to 10 years imprisonment. II. Appeal 8. Being dissatisfied with the conviction and sentence the Appeallant appealed on grounds that:: (iv) 9. (i) He pleaded not guilty to the offence (ii) The trial Magistrate erred in convicting him for stock theft instead of convicting and or charging him for Robbery with Violence Contrary to Section 276 (2) Penal Code (iii) The Trial Magistrate erred in rejecting his defence Failing to call witnesses. In his submissions before Osiemo J, the Appeallant claims he was tried and convicted for a lesser offence of Robbery with Violence Contrary to Section 296(1) penal Code and sentenced to 10 years imprisonment. He prayed that the sentence be reduced. 10. The State most certainly objected to the said request of reducing the sentence stating the maximum sentence was that of 14 years imprisonment. III. Opinion
page 2 of 3
11. The Appeallant faced two Counts before the Senior Magistrate’s Court, that is: (i) (ii) 12. Robbery With Violence Contrary to Section 296 (2) Penal Code that carries a Death Penalty Stock Theft Contrary to Section 278 Penal Code that caries 14 years imprisonment It therefore is not correct that the Appeallant’s case was a conviction of simple Robbery duly reduced? By the Court. The Appeallant in fact was acquitted on the offence of Robbery with violence Contrary to Section 296 (2) Penal Code but convicted on the issue of Stock Theft relied on. 12. The issue of conviction, apart from the petition of appeal was never dealt with in submissions by the Appeallant. The Petition of Appeal relied on the issue that the defence was rejected and not relied on. 13. To this end, the Appeallant may not have brought out this point in his submissions. He was recognized by those whom he is alleged to have attacked. 14. At the appeal stage the Appeallant’s prayer only for the reduction of his sentence from 10 years imprisonment. 15. I find herein on the issue of conviction that the Appeallant had abandoned this. On the issue of sentence, the same was within the law. I am not inclined to interfere with this case. 16. The Appeal is dismissed. Dated this 1st day of September 2010 at ELDORET M.A. ANG’AWA JUDGE. Advocate (i) J.K. Chirchir, Senior State Counsel, instructed by the Office of the Attorney General for the State Present (ii) Komole Maiwa Loonirko, Appeallant in person - Present
page 3 of 3