- After reviewing the facts of the case, Judge Kiarie Waweru said there was no doubt that Nyakiri was the attacker on the fateful day in June.
- He stated that the conviction was based on facts.
Image: FILE
Imagine after a long day's journey, you are finally a short distance from home and the person you are paying to ensure you get there safely turns against you.
This is what happened to Alfayo Kombo Kenyoru two years ago on June 12, 2021, when he travelled from Nairobi to Kisii.
Upon getting to Kisii, he made his way to a boda boda rider and negotiated to take him to Suneka, Iterio.
They had ridden for a while when the rider identified as Victor Nyakiri Nyabaru told Kombo that he was running out of fuel.
They would later get to a fuelling station after which they were able to proceed with their journey after sorting the issue.
They proceeded on their journey and on reaching Mosando Primary School the rider slowed down and once again claimed he had run out of fuel.
Kombo became suspicious, disembarked and started walking away, when Nyakiri pursued him.
When he caught up with him a struggle ensued.
Nyakiri demanded Sh2,000 from Kombo. Kombo was stabbed in the chest in the process but his employment badge dulled the blow and minimised the penetration.
Luckily, Kombo saw a motor vehicle approaching and cried for help.
The rider run away leaving behind his motorcycle
He made away with Kombo's wallet, hand watch, Tecno mobile phone, camera, laptop and a laptop bag all valued at Sh165,200.
Upon reaching where Kombo was left crying for help, the approaching car, which was driven by one George Kengere Oroo who was taking his brother to the hospital, stopped.
Kengere saw that Kombo was injured and his trousers torn and decided to take him, and the motorcycle that had been left behind to the police.
The victim was later taken to the hospital where the clinical officer concluded that he had minor cuts and tenderness.
Days later on June 16, 2021, the owner of the motorcycle was called to identify Nyakiri who had been arrested.
In doing so, he told the police that the man was his rider and had gone missing for some days.
He said he had not received money from Nyakiri for three days and the motorcycle had not been taken to him for overnight safe custody for several days as was the custom.
Nyakiri was then arraigned and charged with robbery with violence, an offence he was convicted of.
He was sentenced to death.
The man was however dissatisfied with the court's decision and moved to challenge it at the High Court at Kisii.
He claimed that the trial magistrate had made a mistake by failing to consider the evidence he produced and by failing to establish if indeed it was he who attacked Kombo.
He further faulted the trial court for convicting him by relying on the prosecution's evidence of mistaken identity.
Nyakiri claimed that the trial magistrate wrongly evaluated the evidence which resulted in the wrongful conviction to death sentence which is unconstitutional.
The appeal was however opposed by the state, through counsel Justus Ochengo who stated that Nyakiri was positively identified and that the prosecution proved its case to the required standards.
He pointed out that the death penalty is legal.
After reviewing the facts of the case, Judge Kiarie Waweru said there was no doubt that Nyakiri was the attacker on the fateful day in June.
He stated that the conviction was based on facts.
On whether Nyakiri's sentence was legal, the Judge cited Section 295 of the Penal Code together with Section 296(2).
Section 295 states that;
"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery."
On the other hand, Section 296 (2) reads;
"If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death."
The court noted that when one is charged under both sections, it would amount to a duplex charge
It said the offence of robbery with violence ought to be charged under Section 296 (2) of the Penal Code.
It went on to clarify that when an accused is convicted in a charge that is duplex such as is the case here, the test is whether any prejudice was suffered.
Finding that Nyakari was aware of the case he was to answer for, Judge Waweru found that the charge as framed did not lead to a failure of justice.
"We must, therefore, reject the appellant's belated complaint that the alleged duplicity in count one of the charges caused him prejudice. I find that the defect if any, was in any event, curable under Section 382 of the Criminal Procedure Code," the judge said.
The section deals with findings or sentences when reversible because of error or omission in charge or other proceedings.
In a judgement dated December 8, Judge Waweru dismissed the appeal on grounds that it lacked merit.