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(2001) JELR 103815 (CA)

Court of Appeal  •  Criminal Appeal 123 of 2001  •  21 Dec 2001  •  Kenya

Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, Richard Otieno Kwach



The appellant, Jonathan Mutisya Valaiu, was convicted of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death. His first appeal to the High Court of Kenya at Machakos, Mwera, J (proceeding under the provisions of Section 359 a(1) of the Criminal Procedure Code) was dismissed and hence this second appeal.

We think that the conviction of the appellant cannot be sustained on the evidence tendered by the prosecution to the trial court.The robbery, the subject of the charge against him, occurred at about 1:00 a.m. during the night of the 18th December, 2000 at Lita Market, Kathiani Location of Machakos District. There was only one identifying witness, PW 1, a watchman of the premises which was raided by a gang of robbers. This witness was also the victim.

PW 1 testified that the appellant whom he had known before when they were in primary school together several years ago was wearing a jacket and a hat.He had been able to recognise h…

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