Death sentence upheld for two men in violent Kenol robberies

Judge finds the evidence before the trial court was compelling /FILE

The High Court in Murang'a has dismissed an appeal by two men who were sentenced to death for a series of violent robberies.

Justice Stephen Mbungi upheld both the conviction and the death sentence imposed on Samuel Mburu Nyoike, alias Kamwana, and Simon Nganga Wainaina, alias Simo, who were found guilty on two counts of robbery with violence.

The judge ruled the direct recognition by victims, who had known the assailants since birth, outweighed any claims of mistaken identity. The court heard that on the nights of May 8 and 9, 2017, three men armed with rungus and pangas terrorised two households in Kenol, Murang'a County.

The first attack occurred around 11pm at the home of Jane Ruth Wanjiru Mburu, who was with her children when the assailants struck. They assaulted her and her son before making away with cash, a Huawei mobile phone, a handbag and other personal effects. Barely two hours later, the gang struck again at the home of Wanyoike Kibocho.

The attackers forced their way into the house through a window after demanding money. Kibocho testified that the first appellant broke his left hand while the second appellant struck him on the head. Another witness, who was also injured during the raid, testified that the attackers assaulted Kibocho.

“She testified that she saw the appellants and a third person who held a torch for them… She later attended an identification parade and identified both appellants,”court records show.

While the appellants had challenged their conviction on multiple grounds, including that the identification was made under unfavourable night conditions, the Director of Public Prosecutions argued that the evidence was of "persons well known to the witnesses".

The respondent submitted that Kibocho and his daughter were "positive" in their recognition because the attackers were from the same locality, which rendered the identification more reliable.

The appellants had also contended that the identification parade was conducted unprocedurally and that crucial witnesses, including the arresting officer and the parade officer, were not called to testify, thereby weakening the prosecution case. Justice Mbungi acknowledged the legal principle that visual identification at night must be treated with great caution. However, he found the evidence before the trial court was compelling.

"The conviction in this matter did not rest on parole evidence alone. There was already direct evidence of recognition by persons who said they knew the appellants before the incident," the judge stated in his ruling.

The court further found that while Mburu (the third prosecution witness) could not identify her attackers by face, the items stolen from her were later recovered, and she identified them as hers.

The judge noted that when this was considered alongside the evidence of the second robbery occurring within the same locality only hours later by a gang using similar weapons and violence, the chain of evidence was "sufficiently strong".

On the complaint regarding the mandatory death sentence, the judge observed that no distinct constitutional challenge had been mounted.

He cited the Court of Appeal decision in Ashibabi v Republic, which reaffirmed that challenges to the constitutional validity of the mandatory death sentence must be properly filed and argued.

"The prosecution proved both counts of robbery with violence beyond reasonable doubt; no material violation of the appellants' fair trial rights has been demonstrated; the defences were properly rejected; and no proper basis has been laid for interference with sentence," Justice Mbungi concluded.