The judgment, delivered by the Court of Appeal sitting in Nakuru by Justices Mativo, Gachoka and Odunga confirmed decisions made by both the trial court and the High Court, stating there was no basis to overturn them.
The man had been convicted of two counts of robbery with violence.
It all started in Naivasha when he and others, not before the court, were said to have carjacked a lorry transporting sand, violently assaulted its occupants, and driven away with the vehicle.
One of the victims later died.
On that day, the driver of the lorry was responding to what he believed was a routine delivery.
He had been contacted by someone posing as a customer who wanted sand delivered to the High Peak area. Upon arrival at the agreed location, the driver and his turnboy were approached by several men.
One of them lured the driver to a saloon car on the pretext of making a payment.
Once there, he was suddenly grabbed, his phone and car keys taken, and he was forced to ingest a mixture of water and unknown tablets.
The turnboy was also seized and beaten after refusing to comply. Only the driver survived. The attackers then threw him out of the vehicle and sped off with the lorry.
The stolen lorry was later tracked heading toward Mau Narok.
Police set up a roadblock and intercepted the vehicle, arresting three men inside, including the appellant. Items recovered from the lorry included a driving licence, phones, and identity documents linked to the victims.
The driver later identified the accused at an identification parade.
Following the trial, the accused was found guilty of robbery with violence and sentenced to death on the first count. The second count was held in abeyance.
He later appealed to the High Court, which dismissed the case in its entirety. He then moved to the Court of Appeal, raising issues of identification, failure to call certain witnesses, and alleged mishandling of his alibi defence.
Through his lawyer, he argued that he had been wrongly convicted.
He claimed that the identification parade was flawed, that the trial relied on evidence from a single witness, and that key witnesses such as the area chief, the masons who helped him after the incident, and medical personnel were not called to testify.
He also maintained that he was arrested while running away from gunshots and that he had no connection to the stolen vehicle.
The prosecution, however, insisted that the identification was clear and reliable. The driver had spent time with the accused during the day and was able to describe and identify him.
The prosecution further argued that the suspect was found inside the stolen lorry and had not offered any explanation as to how he came to be in possession of items stolen from the victims.
They relied on the legal doctrine of recent possession to support the conviction.
The judges of the Court of Appeal carefully examined the issues raised.
On the matter of the identification parade, they found that the trial court had properly relied on the driver’s testimony.
The magistrate had ruled, a view echoed by the High Court, which found that the witness (driver) was in a good position to identify the assailants.
“I have carefully considered the evidence on record and exhibits produced, and there is no doubt in my mind that the robbery incident, which is the subject matter of these proceedings, did occur,” the learned trial magistrate stated.
“This is because the prosecution witness (the driver) was clear that the incident occurred in broad daylight and was able to see what was happening.”
The judges noted that these were two concurrent findings of fact, and that they could only interfere with them if satisfied that there was no evidence to support them.
The court further observed that the doctrine of recent possession was correctly applied.
The appellant did not give any plausible explanation for why he was found inside the lorry or why stolen items, including a mobile phone, a driving licence, and identification documents, were recovered in his presence, the court noted.
The judges said this silence spoke volumes, especially since the robbery had occurred just hours earlier.
“There was sufficient evidence placing the appellant both at the scene of the robbery and in possession of the stolen property thereafter.”
On the failure to call certain witnesses, the Court of Appeal said that not all witnesses are necessary if the case is already well supported.
“There is no evidence that the masons or the chief witnessed the robbery,” the judges observed, adding that medical personnel were not crucial since the physical assault and violence were already established by other witnesses.
As for the appellant’s defence, the court dismissed the claim that he had provided an alibi.
The judges said that at best, he only tried to explain where he was during his arrest, not where he was at the time of the robbery.
They noted that a credible alibi should place the accused at a different location during the time the crime occurred, not merely deny presence at the scene of arrest.
“I have considered the alibi. It amounts to a weak attempt to place himself at the roadblock where he was arrested, but under circumstances not connected to the intercepted lorry. It appears to me to be an afterthought,” Justice David Mwongo had ruled— a finding that the appellate judges later agreed with and saw no reason to overturn.
The court also addressed a claim made by the prosecution that unsworn statements have no value.
While clarifying that such statements are not sworn evidence and cannot be cross-examined, the court explained they are not to be dismissed entirely.
“An unsworn statement is not, in the strict sense of the word, evidence, in the sense of sworn evidence that can be cross-examined to, it is ‘evidence’ in the sense that the court can give to it such weight as it thinks fit and should take it into consideration in deciding whether the prosecution have made out their case.”
In conclusion, the court found that all elements of robbery with violence were proved beyond a reasonable doubt.
The attackers were armed, used force, and were more than one in number. The vehicle and stolen items were recovered from their possession, and one victim had died as a result of the attack.
With that, the Court of Appeal dismissed the appeal and
upheld the conviction and sentence.
