Appellate court upholds life sentence for two robbers

The Court of Appeal in Mombasa has upheld a life sentence against two men who robbed a lorry and its trailer loaded with assorted electric appliances valued at sh13.5 million.

Nicodemus Makau and Joseph Mativo will serve life jail terms after they were found guilty of robbing the truck and the appliances belonging to ONE to ONE Logistics Company Limited.

They also attacked and robbed the truck driver, Benson Mwai, of his Techno touch screen, Nokia touch screen, and Kabambe, valued at sh27,449.

Justices Kibaya Laibuta, F. Ochieng, and Ngenye Macharia upheld Justice G. Dulu's sentence of June 30, 2023, who had also upheld the verdict by Principal Magistrate D. Wangeci of 2021.

The appellate judges, however, said they are not mandated to pronounce themselves on the second appeal on the severity of the life sentence meted out on Makau and Mativo.

"Having carefully considered the record of the two appeals, the grounds on which they are anchored, the rival submissions of learnt counsel, the cited authorities and the law, we reach the inescapable conclusion that the consolidated appeals fail and are dismissed," said Justice Laibuta.

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Justice Dulu held that Makau and Mativo were positively identified by Mwai as among the people who robbed and injured him.

Mwai told the court that on October 9, 2018, he left Likoni, where the vehicle was loaded with electrical appliances for delivery in Nairobi.

However, on his way, he suspected that the vehicle had suffered a tyre burst, so he stopped at Voi to inspect the motor vehicle when he was attacked by a gang of four people.

He said the gang tied him up, and one of them hit him on the back as he struggled and pushed him into the bed in the vehicle’s cabin while one of them took control of the motor vehicle.

Mwai said the truck was driven up to the Ndii area, where they pulled him out of the vehicle, beat him up, tied him up near the national park fence, and armed him with a knife. Mativo demanded to know what was inside the trailer and whether he had the key to it.

They also demanded phone PINs and thereafter tied up his legs, covered his eyes, stuffed a shirt into his mouth, abandoned him, and drove away in the motor vehicle.

In his defence, Makau denied committing the offence and that he was called by his boss, James Kamuti, the previous night to come and help offload goods at Kibarani Centre in Makindu.

He said that Kamuti declined to pick up his calls and switched it off, and that Mwai did not identify him at the identification parade.

Makau said that the M-Pesa statements showed that the money was transferred to Titus Charo Ndeti and not to him.

In his appeal, he faulted the court for showing bias and failing to observe that Mwai was not a credible witness.

He said the court failed to observe that the identification parade was conducted improperly.

In his defence, Mativo said that Makau exonerated him from the  robbery through a letter and protested how the identification parade was conducted.

Mativo said the M-Pesa statement showed that Mwai’s money was transferred to someone else.

He faulted the magistrate for convicting him on the evidence of a single witness, denying his request to recall Mwai, and convicting him on contradictory evidence.