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Bernard Maina Mwaniki v. Republic

(2010) JELR 105708 (CA)

Court of Appeal  •  Criminal Appeal 234 of 2008  •  21 May 2010  •  Kenya

Philip Kiptoo Tunoi, John walter Onyango Otieno, Erastus Mwaniki Githinji



The appellant was convicted by the Senior Resident Magistrate Nanyuki for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death. He appealed to the superior court at Nyeri but the superior court dismissed the appeal in its entirety on 2nd October 2008. This is his second appeal. The main grounds of appeal state in essence that the superior court erred in confirming conviction on the basis of doctrine of recent possession when the complainant had failed to prove that the cap and the wallet belonged to him and also in shifting the burden of proof. The two courts below believed the evidence of William Wakinyua King’ori (PW1), the complainant, and Anthony Muchiri Kariithi (PW2) (Anthony), that the complainant was robbed of a wallet, cap; identity card and Ksh.6,000/= on the night of 26th February, 2006 by a gang of six robbers (whom he did not identify at the time of robbery) as he was leaving Impala Hotel, in Nanyuk…

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