Two robbery with violence convicts who were sent to jail in 2010 and awaits the hangman are not lucky as their latest attempt to appeal the conviction and sentence failed.
Gideon Kimathi Kiburi and Mariira Thaitumu have been in jail for more than a decade. Their first attempt to have their freedom back in 2016 failed when the High Court found that their appeals were meritless.
They tried the Court of Appeal which found late August that the evidence against them was overwhelming and they deserved no mercy.
They were convicted of using panga to mete out violence against on Timothy Kimanthi Njuki in Igembe, Meru county.
They stole one solar panel, one solar battery, one electric inverter, 40 metres of electric cable, three electric switches, two bulbs and Sh8,600 cash, all amounting to Sh26,600.
The evidence that nailed the two was that at about 5pm or 5.30pm on the day of the crime, Njuki, the victim was with another woman and they alighted from a matatu at Mware stage.
They had come from Maua. They began to walk towards home. Njuki was carrying the items that were stolen from him.
“A short distance from the stage they met a group of six men who had pangas. The appellants were among them. PW 1 [Njuki] knew them as they were from his sublocation. These men surrounded PW 1, after ordering him to stop. They took the property he was carrying. It was his bag that contained the inverter, cables, charger, switches and bulbs,” the court papers read.
They frisked him and got Sh8,600 cash in a wallet, which they took.
Njuki escaped from them and met a village elder who referred them to the area assistant chief who mobilised for the arrest of the attackers.
When they were eventually arrested, the woman accompanying Njuki said she recognised three of them who included the named two.
In her evidence, she said the appellants were well known to her as they came from the same sublocation. Unlike PW 1, PW 2 did not give the attackers names to PW 3 or police for their arrest.
The two denied the crime. Though they recognised the victim, they claimed they were being framed.
Kiburi claimed that Njuki was framing him because he used to eat and sleep in his hotel, but that “when I refused him from sleeping in my hotel anymore, he framed me”.
Thaitumu said the victim was allegedly framing him because there was an existing grudge between them. He said, “In July 2010, the complainant started complaining that I was denying him water”.
At the second appeal, they reiterated their defense and complained that the evidence against them was contradictory hearsay.
“The grounds on which the appellants came before this court were that the High Court had erred by allowing the conviction on contradictory and hearsay evidence; that they had been convicted when the evidence regarding their identification and/or recognition was marred with errors; that the burden of proof had been shifted to them; and that each had raised a plausible and formidable defense, which had not been considered as required by section 169 of the Criminal Procedure Code.”
But in the end, the Court of Appeal found there was no merit in the case. It did also not review the death sentence, only saying was legally handed.
The appeals judgment is dated August 24
