The Court of Appeal sitting in Nyeri has quashed the conviction and death sentence of Anthony Kabuthu Ndwiga, who was found guilty in 2014 of violently robbing a petrol station attendant in Kiritiri Township, Embu County.
The attack happened at about 2:00 a.m. on June 7, 2013. Two petrol station employees testified that men armed with a metal bar and a pistol descended on the premises, assaulted them, and stole the night’s proceeds estimated between Sh35,776 and Sh38,000 along with mobile phones and airtime cards.
At trial, complainant Peter Njeru Nyaga told the court that the station lights were on and that he recognised Ndwiga, whom he said he had known for about two years. But the appellate bench found the identification evidence unreliable after analysing inconsistencies and gaps in the record.
A key discrepancy concerned the number of attackers. While Nyaga maintained there were two assailants, his co-worker, Anthony Namu, testified that three men took part in the robbery. The court said the contradiction raised doubt about the accuracy of the witnesses’ observations in the stressful, fast-moving circumstances of a night attack.
The judges also noted that no initial report naming Ndwiga was placed before the trial court, despite the complainant’s claim of prior acquaintance.
Prosecutors leaned heavily on the alleged recovery of one complainant’s mobile phone, said to have been electronically traced to Ndwiga, to invoke the doctrine of recent possession. Yet no call-data printout or certificate under Section 106B of the Evidence Act was produced, and the handset exhibited in court did not match the serial number on the purchase receipt.
The trial court rejected Ndwiga’s explanation that he came to possess the phone through his wife, dismissing the account as a sham, even though the wife was acquitted. The appellate court called that reasoning unfair and said suspicion, however strong, cannot substitute for proof.
In a judgment delivered by Justices Sankale ole Kantai, Jessie Lesiit and Aggrey Mchelule, the Court of Appeal concluded that the identification was not free from the possibility of error and that the recovery evidence was not satisfactorily proved. Finding the conviction unsafe, the court allowed the appeal, quashed the conviction and set aside the sentence, ordering that Ndwiga be released unless otherwise lawfully held.
The ruling brings to a close a protracted legal battle that has spanned more than a decade.
