REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT HOMA BAY CRIMINAL APPEAL NO. 1B OF 2019 JOHNSTON AYIETA NYANGWALA..........APPELLANT VERSUS REPUBLIC..................................................RESPONDENT (From the original conviction and sentence in Criminal case No.43 of 2017 of the Senior Resident Magistrate’s Court a t Ndhiwa by Hon. Mary A.Ochieng–Senior Resident Magistrate) JUDGMENT 1. Johnston Ayieta Nyangwala, the appellant herein, was convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code. 2. The particulars in count one were that on the 13 th February, 2017 at Miranga village in Ndhiwa sub county of Homa Bay County, jointly with others not before court while armed with a panga and a metal rod robbed Trophimo Achoro Bunde of Kshs.10, 000/= and immediately before the time of such robbery injured the said Trophimo Achoro Bunde. 3. The appellant was convicted and sentenced to suffer death as prescribed by the law. 4. The appellant was in person and raised the following grounds of appeal: a) That the said alleged items i.e. cash valued at kshs.10,000/-, 2 bottles of drinking water, 2 litres of milk and a bunch of keys were not produced before court as evidence/exhibits. b) That the charge was not proved beyond any reasonable doubt. c) That the sentence meted was harsh, dehumanizing, degrading and consistent with human rights. d) That the alleged tools used to commit the alleged offence i.e. a panga and metal rod were not produced as exhibit or evidence. 5. The appeal was opposed by the state through Mr. Ochengo, learned counsel who contended that the evidence was overwhelming. 6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32. 7. Before the complainant was attacked, he said he had met with the appellant whom he recognized from the light of a mobile phone he (appellant) was using. After by passing each other and he had walked for what he testified as 10 metres and what he informed the investigating officer was 10 metres, he was attacked from behind. 8. Trophimo Achoro Bunde (PW1) told the court that when he was hit from behind and before falling down, he turned and saw the appellant. 9. This was a dark night and he did not tell the court what assisted him at this juncture to recognize the person he said was the appellant. It is important to note that he fell down from the blow. It was inconceivable that he was able to turn before falling down.
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10. This witness did not testify that when he met with the appellant he had any weapon. 11. Joram Onyimbo Okech (PW3) testified that when he met with the appellant, the latter had only a spotlight. When Joshua Ouma Ogutu (PW4) met the appellant, he said he (appellant) had nothing. 12. Johnston Ayieta Nyangwala testified that he indeed met with the complainant on the material night but denied that he was one of the attackers. 1. It would appear that the appellant was arrested and charged on suspicion for he had met with the complainant just before he was attacked and robbed. The Court of appeal in the case of Sawe vs. Republic[2003] KLR 354, held as follows: Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt. 13. In the instant case, the prosecution did not adduce evidence that transcended suspicion. With nothing more against the appellant, I find that the prosecution did not discharge its onus. 14. From the foregoing analysis of the evidence on record, I find that the conviction of the appellant was not safe. There was no sufficient evidence of robbery adduced against the appellant. 15. I accordingly quash the conviction and set aside the sentence. The appellant is set at liberty unless if otherwise lawfully held. DELIVERED AND SIGNED AT HOMA BAY THIS 17TH DAY OF MARCH, 2022 KIARIE WAWERU KIARIE JUDGE
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