Man in Chinese couple robbery to serve 30-year jail term after DPP appeal

A man convicted of violently robbing a Chinese businessman and his wife in Kilifi has suffered a major setback after the Supreme Court upheld both his conviction and 30-year prison sentence.

Goddrick Simiyu Wanga, who has been fighting to overturn the verdict since his conviction in 2015, was dealt the final blow after the apex court ruled that his appeal lacked merit.

The court also ruled that his appeal did not meet the threshold required for the Supreme Court to hear it.

The five-judge bench led by Chief Justice Martha Koome unanimously dismissed Wanga’s final attempt to overturn his conviction, stating that the case was “a standard criminal matter” and did not raise any constitutional questions that would warrant the intervention of the apex court.

“The appeal fails and accordingly, we down our tools at this stage,” the bench ruled, affirming the decisions of both the High Court and the Court of Appeal.

The Director of Public Prosecutions (DPP), Renson Ingonga, successfully opposed the appeal, contending that Wanga was introducing new arguments that were not raised in the trial court and that he had failed to prove any breach of his constitutional rights.

The DPP asserted that the appellant had failed to demonstrate how his constitutional rights had been violated and was stopped from raising new constitutional claims at this stage.

Wanga was among eight individuals convicted of violently robbing Yul Wenger and his wife, Heike Wenger, on December 4, 2013, at their residence in Bofa, Kilifi County. 

Armed with a pistol, the group allegedly stole items valued at Sh 12.3 million and threatened to use violence during the raid.

Initially sentenced to death by the Senior Principal Magistrate’s Court in Kilifi, Wanga and his co-accused appealed to the High Court.

They argued that the charge was defective, the prosecution’s evidence was contradictory, the trial court had erred in law, and their defence had not been properly considered.

They also contested the use of dock identification and claimed that items said to have been recovered from them were never identified in court.

The High Court found no error of law or principle by the trial court and held that the prosecution had proven its case beyond a reasonable doubt. 

The appeal was dismissed, although the death sentence was substituted with a 30-year custodial sentence.

Still aggrieved, Simiyu and four others moved to the Court of Appeals. 

However, the appellate court noted that many of the grounds raised had not been canvassed before the High Court and, thus, could not be entertained in a second appeal. 

Citing Section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal held that the severity of a sentence is a question of fact and not law, and thus, beyond the jurisdiction of a second appeal.

Consequently, the convictions and 30-year sentences were upheld, and the offenders were ordered to complete their sentences.

Aggrieved by the appellant court ruling, Wanga proceeded to file a final appeal at the Supreme Court alone, arguing that his trial had violated his constitutional rights under Articles 49 and 50 of the Constitution. 

Wanga also argued that the courts failed to uphold previous constitutional findings regarding the unconstitutionality of Section 296(2) of the Penal Code.

He claimed the charge was defective, the evidence was contradictory, and the courts had failed to consider key aspects of his defense, including alleged misidentification and the lack of proper identification of recovered items.

In their decision, the Supreme Court judges Koome, her Deputy Philomena Mwilu and judges Ibrahim Mohammed, Njoki Ndungu and William Ouko emphasized that its jurisdiction is strictly limited to cases that involve constitutional interpretation or application.

The judges found that Wanga’s case did not meet this criterion as he failed to specify under which constitutional provision his appeal was anchored.

“We reiterate, as conceded before us by the appellant, that the allegations of constitutional controversy are being canvassed for the first time before this Court,” the judgment stated.

“It presents neither exceptional circumstances nor an opportunity for the Court to provide interpretive guidance on the Constitution.”

Koome led bench also noted that the conviction was based on “clear identification and circumstantial evidence” tied to the doctrine of recent possession, a legal principle where possession of recently stolen items can be used as evidence of involvement in the crime.