The appellant herein was charged, convicted and sentenced to serve 20 years imprisonment for the offence of Robbery with Violence Contrary to section 295 as read with section 296(2) of the penal code. The particulars on 1st day of December, 2024 at 1000hrs at Adele area Madogo location, Bangale Sub County within Tana River County robbed ANN KAMENE NGOVI of her mobile phone make Samsung Note 15A valued at ksh. 18,300, vegetables valued at Ksh 270 and ksh.730 all valued at 19,300 and immediately before the time of such robbery threatened to stab the said ANN KAMENE NGOVI with a knife.
Dissatisfied with the Conviction and Sentence the appellant preferred the present appeal setting out the following grounds in summary and as contained in the amended grounds of appeal.
1. THAT the learned Magistrate erred in law and in fact by failing to find that the prosecution case was not proved beyond reasonable doubt, having relied on the evidence of a single witness which was insufficient to sustain a conviction.
2. THAT the learned Magistrate erred in law and in fact by failing to find that the complainant evidence did not establish the essential elements of the offence of the offence of robbery with violence, and that the charge is not supported by evidence on record.
3. THAT the learned magistrate erred in law and fact by disregarding the appellant defence without providing cogent reasons, thereby occasioning a miscarriage of justice.
I am required as a first appellate court to revisit and re-evaluate the evidence afresh, assess the same independently and make my own conclusions bearing in mind the limitations inherent in the appellate process that I neither saw nor heard the witnesses testify, and cannot therefore comment on their demeanour an important aspect in a criminal trial. See Okeno vs Republic [1972] E.A 32. And further the Court of Appeal case of Mark Oiruri Mose vs. Republic (2013) eKLR
Prosecution case
PW1 Ann Kamene Ngovi an employee with the County Government of Garissa testified and told the court that on 1st December 2024, she had gone to pick her phone from where she taken it for charging and proceeded to a grocery shop to by vegetables and fruits and thereafter went home. She had ksh 780 left from the shopping. On her way home at around 10:00 am she met the appellant who removed a knife and ordered her to give him everything. She complied and handed over to the appellant a bag which had cell phone, and its charger, vegetables, fruits and ksh 780. The witness told the court that the appellant then ran away and disappeared into the bushes. As the appellant was known to her, she went to his uncle Mr Guyo her neighbour and informed him of the incident. The appellant uncle took her to his (appellant) mother was defensive and threatened to beat the complaint saying that her son was incapable of robbing her. On 23rd December, 2024 the witness saw the appellant, raised alarm and had him arrested by members of the public.
In cross examination, the witness denied owing the appellant money for sale of charcoal and that she had never had any business transaction with the appellant whatsoever. She also denied the appellant assertion that she was not amongst the people who escorted him to Madogo police station upon his arrest by the public and stated further that the appellant in presence of her sister threatened her with a knife when she asked him to return her phone.
PW2 NO 113790 PC Oyoo Felix was the investigating officer in the matter. He told the court that the complainant lodged a complaint at the police station that she was robbed of items particularized in the charge sheet by a person known to her being the appellant herein. He told the court that the complainant reported the mater to the appellant uncle who is her neighbour and the uncle to her to the appellant mother. The appellant’s mother was reportedly defensive and took side with her son. The appellant was days later arrested by members of the public after the complainant raised alarm.
On the basis of the prosecution evidence the court magistrate court was satisfied that the evidence presented by the state was sufficient and placed the appellant on his defence. In his sworn testimony given on 24th September 2024, the appellant told the court that he was involved the charcoal business and the complainant in this case was one of his customers. That he had delivered 25 bags of charcoal to the complainant at an agreed price of 250 per bag and was paid 3,000 and the balance to be paid later. The appellant told the court that when he went to asked the complainant for the remaining balance, the complainant told him to not bother her again. He reported the matter to his parents who promised to follow up on the matter with the complainant.
On 12th December 2024 on his way to Adele to sell charcoal he met with a group of people who beat him up and taken to police station where he was held. He told the court that the complainant demanded to be paid 20,000 as a condition for his release else he will be locked up for life.
This then in brief is the case of the prosecution and the defence before the trial court and this court. The issue for determination broadly is;
ANALYSIS AND DETERMINATION
I have considered the prosecution case and the defence as well as the submissions and authorities supplied and/or cited. In my view the issue for determination is broadly Whether the prosecution proved the offence beyond reasonable doubt.
The offence of robbery with violence is a creation of Sections 295 and the sentence prescribed in 296(2) of the Penal Code which provides;
“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
296(2). If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
From the foregone legal provisions, it can be seen that the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the violence.
The offence termed Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. The ingredients for the offence of robbery with violence is, Theft and the use of or threat to use actual violence.
On the other hand, the offence termed robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -
(a) The offender is armed with any dangerous or offensive weapon or instrument, or
(b) The offender is in the company of one or more other person or persons, or
(c) The offender at or immediately before or immediately after the time of the robbery wounds, beats, strikes or uses any other personal violence to any person.
In the instant case, the complainant told the court that she was robbed by the appellant a person she had known before and therefore recognized him on the material day. In fact, the identity of the appellant is not in doubt at all as the appellant himself agrees in his defence that he had sold charcoal to the complainant before. The complainant stated that the appellant pulled out a knife and threatened harm on her if she refused to hand over all the items, she had in a carrier bag. Apprehensive of her safety, she obliged to the appellants orders and handed over the bag and all its contents and thereafter the appellant disappeared into a bush. The complainant went to the appellant uncle and informed him of what had happened. The uncle took her to the appellant mother who as earlier indicated was hostile and denied her sons involvement. The evidence also shows that the complainant on a later date met the appellant together with her (appellant) sister and asked to be given her property. The appellant is reported to have removed a knife and again threatened harm on the complainant. The trial court was satisfied and correctly in my view that the attack occurred during the day and although there was no other person present at the time of the incident, the complainant evidence was sufficient.
Although there was no other witness during the daylight robbery, I am satisfied that the circumstances obtaining at the time of the offence were clear and there was no opportunity for an error in identification. The Court of Appeal in the case of Wamunga vs Republic (1989) KLR 426 stated as under; -
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”
The appellant during the trial and his submissions contends that the complainant through the prosecution preferred the charges against him knowing too well that the complainant owed him some money which she had refused to pay. This allegation was strongly denied by the complainant consistently during the trial before the magistrate court. There was no evidence of any transaction between the complainant and the appellant as it relates to the charcoal business. On the issue of Alibi, the appellant told the court that he was in the forest burning charcoal and could not possibly have been involved in the commission of the offence. Although the defence was raised late in the day (during the defence hearing) or in the course of the trial it is still the responsibility of the prosecution to displace it despite the fact that an earlier opportunity to do so had not been offered in good time. The appellant does not assume the responsibility to establish his alibi defence once raised.
In Kiarie v Republic [1984] KLR 739 the court of appeal held that an alibi defence must be tested against the totality of the prosecution evidence, and where the evidence irresistibly points to the accused’s presence at the scene, the alibi fails. Similarly, in Victor Mwendwa Mulinge v Republic [2014] eKLR, the court observed that even if an alibi is raised late, the court must consider it but may reject it if the prosecution evidence clearly places the accused at the scene. Although as indicated earlier, there was no other witness called other than the complainant and the investigating officer, the prosecution evidence established that the appellant robbed the complainant in broad day light. It would have been necessary for the prosecution to call the appellants uncle (GUYO) who was made aware of the robbery to confirm whether that the incident was reported to him and that he took the complainant to the appellant mother. This notwithstanding, the evidence of the complainant in the circumstances of this case was sufficient to found a conviction.
The sentence for robbery with violence by statute is death sentence. However, death sentence is not mandatory and the trial court in appropriate cases may impose a definite term sentence as was the case in this appeal. It is purely a discretion of the sentencing court to fashion out a sentence suitable to the circumstances as determined by the court. The sentence of 20 years imprisonment though lawful is in the circumstances of this case harsh and excessive. I hereby reduce the sentence to 10 years imprisonment effective from 16th December 2024 to take into account the period appellant spent in remand custody.
Consequently, the appeal partly succeeds, the Conviction is upheld and the sentence varied as above.
Dissatisfied with the Conviction and Sentence the appellant preferred the present appeal setting out the following grounds in summary and as contained in the amended grounds of appeal.
1. THAT the learned Magistrate erred in law and in fact by failing to find that the prosecution case was not proved beyond reasonable doubt, having relied on the evidence of a single witness which was insufficient to sustain a conviction.
2. THAT the learned Magistrate erred in law and in fact by failing to find that the complainant evidence did not establish the essential elements of the offence of the offence of robbery with violence, and that the charge is not supported by evidence on record.
3. THAT the learned magistrate erred in law and fact by disregarding the appellant defence without providing cogent reasons, thereby occasioning a miscarriage of justice.
I am required as a first appellate court to revisit and re-evaluate the evidence afresh, assess the same independently and make my own conclusions bearing in mind the limitations inherent in the appellate process that I neither saw nor heard the witnesses testify, and cannot therefore comment on their demeanour an important aspect in a criminal trial. See Okeno vs Republic [1972] E.A 32. And further the Court of Appeal case of Mark Oiruri Mose vs. Republic (2013) eKLR
Prosecution case
PW1 Ann Kamene Ngovi an employee with the County Government of Garissa testified and told the court that on 1st December 2024, she had gone to pick her phone from where she taken it for charging and proceeded to a grocery shop to by vegetables and fruits and thereafter went home. She had ksh 780 left from the shopping. On her way home at around 10:00 am she met the appellant who removed a knife and ordered her to give him everything. She complied and handed over to the appellant a bag which had cell phone, and its charger, vegetables, fruits and ksh 780. The witness told the court that the appellant then ran away and disappeared into the bushes. As the appellant was known to her, she went to his uncle Mr Guyo her neighbour and informed him of the incident. The appellant uncle took her to his (appellant) mother was defensive and threatened to beat the complaint saying that her son was incapable of robbing her. On 23rd December, 2024 the witness saw the appellant, raised alarm and had him arrested by members of the public.
In cross examination, the witness denied owing the appellant money for sale of charcoal and that she had never had any business transaction with the appellant whatsoever. She also denied the appellant assertion that she was not amongst the people who escorted him to Madogo police station upon his arrest by the public and stated further that the appellant in presence of her sister threatened her with a knife when she asked him to return her phone.
PW2 NO 113790 PC Oyoo Felix was the investigating officer in the matter. He told the court that the complainant lodged a complaint at the police station that she was robbed of items particularized in the charge sheet by a person known to her being the appellant herein. He told the court that the complainant reported the mater to the appellant uncle who is her neighbour and the uncle to her to the appellant mother. The appellant’s mother was reportedly defensive and took side with her son. The appellant was days later arrested by members of the public after the complainant raised alarm.
On the basis of the prosecution evidence the court magistrate court was satisfied that the evidence presented by the state was sufficient and placed the appellant on his defence. In his sworn testimony given on 24th September 2024, the appellant told the court that he was involved the charcoal business and the complainant in this case was one of his customers. That he had delivered 25 bags of charcoal to the complainant at an agreed price of 250 per bag and was paid 3,000 and the balance to be paid later. The appellant told the court that when he went to asked the complainant for the remaining balance, the complainant told him to not bother her again. He reported the matter to his parents who promised to follow up on the matter with the complainant.
On 12th December 2024 on his way to Adele to sell charcoal he met with a group of people who beat him up and taken to police station where he was held. He told the court that the complainant demanded to be paid 20,000 as a condition for his release else he will be locked up for life.
This then in brief is the case of the prosecution and the defence before the trial court and this court. The issue for determination broadly is;
ANALYSIS AND DETERMINATION
I have considered the prosecution case and the defence as well as the submissions and authorities supplied and/or cited. In my view the issue for determination is broadly Whether the prosecution proved the offence beyond reasonable doubt.
The offence of robbery with violence is a creation of Sections 295 and the sentence prescribed in 296(2) of the Penal Code which provides;
“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
296(2). If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
From the foregone legal provisions, it can be seen that the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the violence.
The offence termed Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. The ingredients for the offence of robbery with violence is, Theft and the use of or threat to use actual violence.
On the other hand, the offence termed robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -
(a) The offender is armed with any dangerous or offensive weapon or instrument, or
(b) The offender is in the company of one or more other person or persons, or
(c) The offender at or immediately before or immediately after the time of the robbery wounds, beats, strikes or uses any other personal violence to any person.
In the instant case, the complainant told the court that she was robbed by the appellant a person she had known before and therefore recognized him on the material day. In fact, the identity of the appellant is not in doubt at all as the appellant himself agrees in his defence that he had sold charcoal to the complainant before. The complainant stated that the appellant pulled out a knife and threatened harm on her if she refused to hand over all the items, she had in a carrier bag. Apprehensive of her safety, she obliged to the appellants orders and handed over the bag and all its contents and thereafter the appellant disappeared into a bush. The complainant went to the appellant uncle and informed him of what had happened. The uncle took her to the appellant mother who as earlier indicated was hostile and denied her sons involvement. The evidence also shows that the complainant on a later date met the appellant together with her (appellant) sister and asked to be given her property. The appellant is reported to have removed a knife and again threatened harm on the complainant. The trial court was satisfied and correctly in my view that the attack occurred during the day and although there was no other person present at the time of the incident, the complainant evidence was sufficient.
Although there was no other witness during the daylight robbery, I am satisfied that the circumstances obtaining at the time of the offence were clear and there was no opportunity for an error in identification. The Court of Appeal in the case of Wamunga vs Republic (1989) KLR 426 stated as under; -
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”
The appellant during the trial and his submissions contends that the complainant through the prosecution preferred the charges against him knowing too well that the complainant owed him some money which she had refused to pay. This allegation was strongly denied by the complainant consistently during the trial before the magistrate court. There was no evidence of any transaction between the complainant and the appellant as it relates to the charcoal business. On the issue of Alibi, the appellant told the court that he was in the forest burning charcoal and could not possibly have been involved in the commission of the offence. Although the defence was raised late in the day (during the defence hearing) or in the course of the trial it is still the responsibility of the prosecution to displace it despite the fact that an earlier opportunity to do so had not been offered in good time. The appellant does not assume the responsibility to establish his alibi defence once raised.
In Kiarie v Republic [1984] KLR 739 the court of appeal held that an alibi defence must be tested against the totality of the prosecution evidence, and where the evidence irresistibly points to the accused’s presence at the scene, the alibi fails. Similarly, in Victor Mwendwa Mulinge v Republic [2014] eKLR, the court observed that even if an alibi is raised late, the court must consider it but may reject it if the prosecution evidence clearly places the accused at the scene. Although as indicated earlier, there was no other witness called other than the complainant and the investigating officer, the prosecution evidence established that the appellant robbed the complainant in broad day light. It would have been necessary for the prosecution to call the appellants uncle (GUYO) who was made aware of the robbery to confirm whether that the incident was reported to him and that he took the complainant to the appellant mother. This notwithstanding, the evidence of the complainant in the circumstances of this case was sufficient to found a conviction.
The sentence for robbery with violence by statute is death sentence. However, death sentence is not mandatory and the trial court in appropriate cases may impose a definite term sentence as was the case in this appeal. It is purely a discretion of the sentencing court to fashion out a sentence suitable to the circumstances as determined by the court. The sentence of 20 years imprisonment though lawful is in the circumstances of this case harsh and excessive. I hereby reduce the sentence to 10 years imprisonment effective from 16th December 2024 to take into account the period appellant spent in remand custody.
Consequently, the appeal partly succeeds, the Conviction is upheld and the sentence varied as above.