Author: FAUSTINE KAPAMA
AfricaPress-Tanzania: THE Court of Appeal has upheld both conviction and a 30-year sentence imposed on three Kenyans for their role in an armed robbery of over 5bn/- at National Bank of Commerce (NBC) in Moshi, Kilimanjaro Region in 2004.
Justices Batuel Mmilla, Sivangilwa Mwangesi and Gerald Ndika ruled against Gabriel Kariuki, Jimmy Njoroge, alias Ordinary and Jumanne Kilongola, alias Askofu, after dismissing their respective appeals against the findings of the trial court and High Court.
The judges, however, acquitted three other Kenyans – William Nganyi , alias Dadii, Patrick Mrithi, alias Musevu and Simon Kiambuthi, alias Kenen, who were charged alongside the said trio after finding that their convictions in respect to the offence was wrong.
During hearing of the appeal, the justices embarked on considering the evidence of visual identification for each Kenyan appellants, starting with Nganyi and Kiambuthi, whose convictions over the offence was based on an identification parade, wherein they were identified by PW6 and PW7.
“We do not find any linkage between the identification which was made against (them) in a shuttle and the incident of armed robbery which occurred at the NBC Moshi branch. “Under the circumstances, the basis of holding these appellants culpable for the offence they were convicted of was wanting,” they ruled.
On the other hand, Kairuki was convicted based on the visual identification made against him by prosecution witnesses on account that he was among the bandits who carried out the robbery at NBC Moshi branch on May 21, 2004, as was the case for Njoroge.
To satisfy themselves, the justices took the trouble of looking at the coherence of the testimonies of the prosecution witnesses as well as their relationship, but failed to find any incoherence or contradictions.
“In the circumstances, we are inclined to join hands with the findings of the two lower courts that the identification of the third and fourth appellants was impeccable,” they said.
As regards to Mrithi, his conviction for the charged offence by the trial court was based on the evidence of visual identification which came from one Gadiel Sifael.
This witness never appeared in court to testify, instead, the statements he had given at the Police Station were tendered as exhibit.
They justices agreed with the prosecution that the statement of a person who never appeared in court to testify, so as to be cross-examined by the accused and his demeanor assessed by the trial court, could not without corroboration, ground conviction against him.
As for Kilongola, his conviction was based on circumstantial evidence as he was not at the Bank at the time the offence of robbery was committed.
He was accused of hiring a motor vehicle which was involved in the robbery at the Bank on the material date.
“In view of the cogent circumstantial evidence which was used by the prosecution to implicate (him) with the offence of armed robbery, even though he was not at the scene of the crime, it is evident that he actively facilitated its commission,” the justices ruled.
In the circumstances, in terms of Section 22 (1) (b) and (c) of the Code, the justices proceeded to hold that Kilongole was rightly found guilty and convicted of the offence of armed robbery.
The prosecution had told the court that on May 21, 2004 at the National Bank of Commerce Limited (NBC), Moshi branch within the District of Moshi in the Region of Kilimanjaro, the appellants and their colleagues, stole 5,319,777,722/82, the property of the NBC.
Immediately before or immediately after the time of theft, the appellants used offensive weapons such as firearms and knives to threaten bank officials and customers, in order to obtain and retain the stolen property.
On May 21, 2004, a few minutes before 15:00 hours, while employees of the NBC Moshi branch were in their ordinary course of business, they were invaded by bandits who at first, disguised themselves as ordinary customers and queued up for service.
Then after the front door to the bank was closed, which was at 15:00 hours as per routine, the bandits revealed their true colours by taking out weapons they had hidden in the clothes they wore and started to terrorize bank employees as well as other customers who were still getting services therein.
All of them were declared to be captives and ordered to lie down. At gun point, all captives were thereafter ordered to go and assemble in the hall of the bank where they were thoroughly searched and all their personal belongings taken away.
