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HB61-15 - MICHAEL NDIWENI vs THE STATE

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Procedural Law-viz criminal appeal.
Procedural Law-viz final orders re ex tempore orders iro entitlement of litigants to written reasons for judgment.
Robbery-viz armed robbery re the doctrine of common purpose.
Sentencing-viz armed robbery.
Sentencing-viz multiple counts.
Procedural Law-viz rules of evidence re evidence of identification.
Procedural Law-viz appeal re findings of fact made by the trial court.
Procedural Law-viz rules of evidence re expert opinion iro ballistics evidence.
Procedural Law-viz rules of evidence re physical evidence.
Procedural Law-viz pleadings re non-pleaded issues iro matters raised for the first time on appeal.
Procedural Law-viz pleadings re matters not specifically pleaded iro issues introduced for the first time on appeal.
Procedural Law-viz appeal re grounds of appeal iro matters introduced for the first time on appeal.
Procedural Law-viz appeal re grounds for appeal iro issues raised for the first time on appeal.
Procedural Law-viz appeal re belated pleadings iro fresh matters introduced for the first time on appeal.
Procedural Law-viz rules of evidence re Defence Outline iro the presumption of clarity of events nearer the date of the event.
Procedural Law-viz rules of evidence re witness testimony iro being candid with the court.
Procedural Law-viz rules of evidence re witness testimony iro candidness with the court.
Procedural Law-viz rules of evidence re admissions iro unchallenged evidence.
Procedural Law-viz rules of evidence re admissions iro undisputed averments.
Procedural Law-viz rules of evidence re admissions iro uncontroverted submissions.
Procedural Law-viz right of audience before the court re self-actors.
Procedural Law-viz appeal re litigants in person.

Final Orders re: Approach, Variation, Misdirections, Dismissal For Want of Prosecution and Effect of Procedural Irregularities


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

Indictment or Charge re: Multiple or Co-Accused, Multiple Charges and Differing Pleas iro Joint or Separate Trials


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case.

The appellant was, however, found guilty as charged in respect of all the four counts.

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case.

The appellant was, however, found guilty as charged in respect of all the four counts.

Robbery, Armed Robbery, Robbery Committed in Aggravating Circumstances and the Doctrine of Recent Possession


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Evidence of Identification, Identification Parade, Tool Mark Evidence, Alias, Evidence Aliunde & the Defence of Alibi


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Defence Outline, State Outline re: Approach, Testimonial Discrepancies and Prevaricative or Inconsistent Evidence


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Findings of Fact re: Witness Testimony, Candidness with the Court and Deceptive or Misleading Evidence


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Appeal and Leave to Appeal re: Approach, Notice and Grounds of Appeal iro Belated Pleadings


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

Sentencing re: Robbery, Armed Robbery and Robbery Committed in Aggravating Circumstances


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants....,.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Sentencing re: Approach iro Multiple Counts, Prescribed Sentences & the Cumulative or Concurrent Running of Sentences


After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants....,.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

Criminal Appeal

KAMOCHA J: After hearing the appellant and counsel for the respondent we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the regional court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the state case. Appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests but surprisingly the appellant drew out a fire arm and ordered the witnesses to lie down, searched them and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court that they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade 9 days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count the accused was betrayed by his star pistol serial number 63609 whose spent cartridge case was found at T.Z. Supermarket the scene of a robbery committed on 27 April 2012. It was established that the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state that he only knew something about a different firearm all altogether a CZ pistol.

When asked why he had not put that in his written defence outline and why he never raised it during the entire proceedings of the trial. His reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked again why he did not mention that at his trial. He sought to blame the trial court for not recording such a material fact. He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions on appeal were clear after-thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also his reply was that since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion that the appeal was devoid of any merit and dismissed it in its entirety.

TAKUVA J…………………………….. I agree


Prosecutor General's Office, respondent's legal practitioners

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