Court commits robbery with violence convict to death second time

Man who built his fame as a village alpha figure and used violence to reign terror randomly to his victims under the cover of the night will serve his time in prison awaiting the hang man.

An appeals court in Kisumu dismissed Erick Osewe Acholla’s second attempt to get his freedom back. It was his second appeal to quash a robbery with violence conviction, but it failed.

The early November judgement is significant, coming at a time when the country is grappling with a wave of vicious robbery with violence incidents in major cities, leaving victims with injuries, if not lifeless.

Crime and policing experts argue that the crime wave in the country can be contained through effective collaborative work by the justice sector players, including the courts, and not just the police alone.

In fact, security and risk management experts, SF Group, warned on Thursday that unless the criminal justice sector’s synergies are harnessed faster, the wave could intensify in the weeks ahead as festivity seasons begin.

“Threat of opportunist crime likely to increase ahead of the festive season, including a heightened risk of burglary of unoccupied residences as the holidays approach,” it said.

On account by five prosecution witnesses, a three-judge appellate bench convicted the dreadlocked man, condemning him to death.

At about 11pm on August 14, 2015, one Jairo Onyango, accompanied by his six siblings were from a disco matanga in Kanyadet sub-location in Gem, Siaya. They had enjoyed themselves and were on their way home under the cover of darkness.

But on a rural feeder road in the village, Acholla, alongside two others, stopped them and flashed a torch on their faces.

One of Onyango’s siblings had a torch as well and flashed the face of their assailant with it, identifying as Omondi Rasta, as he was locally known.

Achola and his team were armed with crude weapons, including sharp pangas and rungus.

While a few other victims escaped, they remained with Onyango. They hit his head several times. 

They then cut his head and leg using the panga. A medical examination the following day showed he had suffered multiple cut wounds to his scalp and a deep cut wound on his right leg.

Achola and his squad then took Onyango’s tecno phone and Sh1,500 he had.

“After assaulting him, the assailants led PW1 [Onganyo] back towards the home that hosted the disco matanga but on the way changed their minds and let him go,” the judgment reads.

The victim limped back home, woke up his brother Erick Otieno Onyango and went to where there was a disco only to find Achola enjoying the night away.

“He was dressed in a jacket with a KPLC logo and jungle trousers. These were the same clothes he was wearing during the attack. The appellant [Achola] asked PW1 why they had returned to the home and then removed a blood stained panga from his trouser in a bid to attack but PW2 [Otieno] caught his hand…” the judgment reads. 

The people arrested Achola and frogmarched him to Akala police station, where got booked.

The plank of Achola’s two failed appeals were that mandatory death sentence was unconstitutional and that no identification parade was conducted to ascertain that it was indeed him who committed the offence.

His lawyers said that the evidence of a single identifying witness, where conditions for positive identification are difficult, must be tested with greatest care, especially where the life of an accused is at stake.

 “The appellant gave alibi evidence that at the time of the alleged incident, he was sleeping in his house. He heard the sound of a motorcycle outside his house and on getting out, he saw a crowd of people," the court said. 

"A person in the crowd hit him on the head alleging that he (the appellant) had beaten his brother. He was arrested and escorted to the police station where he was detained and later arraigned in court on the charge for which he was convicted.”

The court disagreed.

“Just as the two courts below,” the court said, “we are satisfied that the evidence of recognition by PW1 and PW4, corroborated by PW2, was sufficiently strong to found a firm and safe conviction.”

“ We also add that the proposition by the appellant that the evidence of recognition was weak because it was not tested through an identification parade is without merit.

"Once the evidence of two witnesses was that they knew the appellant prior to the incident then an identification parade would serve no purpose because they would simply point out the person they would already have told the police they had recognised.”

(edited by Amol Awuor)