The Appellant Bernard Ahoya was charged with the offence of robbery with violence contrary to Section No.296 (2) of the Penal Code
Particulars of the offence are that the Appellant on the 9th November,2021 at about 0500 hours at Edemba Village,Bware Sub-Location, South Kanyamkago Location, Uriri Sub- County, in Migori County while armed with dangerous weapons namely panga robbed Elphas Ong’ong’a Nyambega one Tecno phone black in colour worth Ksh 4800/= and cash Ksh. 1800/=
Based on the evidence of six (6) Prosecution witnesses and the Appellant’s sworn testimony the trial Magistrate convicted the Appellant and sentenced him to serve 40 years imprisonment.
The Appellant was aggrieved by the conviction and sentence and he lodged the appeal herein through a Petition of Appeal dated 09/10/2023 on the following grounds:
1. That he pleaded not guilty to the charge .
2. That the trial court erred in both law and facts by failing to comply with article 50(2) (g)h) of the Constitution of Kenya,2010.
3. That the trial court erred in both law and facts by not observing that the ingredients of the offence herein were not proved to the required starndards in law and facts.
4. That the trial court erred both in law and facts by not observing that the case had grave contradictions which could not sustain a conviction but a total acquittal.
It was the prosecution’s case that the Appellant together with others robbed and injured the Complainant on 9/11/2021 on his way home from a funeral in the neighbourhood.
Pw1 testified and stated that he had left a funeral at around 5 am when he met the Appellant who was in the company of 2 others.He stated that he knew the Appellant by his appearance but the Appellant’s father was well known to him.Since there were street lights at the shop of Absalom Luanga where he was passing at the time of the incident, he was able to recognise the Appellant and another person called Anzira. That one of thugs held his shirt and as he was struggling to free himself, the Appellant cut him on the right leg near the thigh and he fell down. That the Appellant went further and cut his right hand and the right leg. The Complaint further stated that the 3 men stole his Tecno phone and his wallet containing Ksh. 1800, a pair of trouser, a pair of shoes and his cap. He stated that he lost consciousness and he woke up to find himself at Ombo mission hospital. It was his testimony that the matter was reported to the police at Uriri Police Station by his wife and she was issued with a P3 form. This was while he was still at the hospital. He stated that the police visited him at the hospital and he gave them the name and description of the 2 persons who had injured and robbed him. An identification parade was called and he was able to identify the Appellant at the parade
Pw2 a Clinical Officer based at Uriri Sub-County Hospital testified that he examined the Complainant had tenderness swelling on the whole body. He had a deep cut wound on the right thigh and he had been stitched and given antibiotic. That P3 form was issued and dully filled by PW2 who produced it in court. PW2 classified injuries suffered by the Complainant as harm.
PW3’s testimony was that on the material day he had left his home at 5.30 am to go and open his shop when he was informed by pupils that there was a man who was injured along the road. When he went to check on the said person, he found out that it was Ongongo. He alerted his family members who came to the scene. He further testified that he called for a motor vehicle which came and escorted the Complainant to the hospital.
PW4 also testified and reiterated what PW1 stated that on the material day he had seen the Appellant carrying a panga at around 5.30 am and he was talking to himself. He testified to the effect that he had identified the Appellant as the perpetrator of the offence.
PW5 the Assistant Chief reiterated what PW4 stated that the Appellant had been seen at the scene of the attack and that members of the public arrested him and he was escorted to Uriri police station.
PW6 No. 109922 PC …….. attached to Kamagambo Police station in Rongo Sub-County was the Investigating Officer in this case and he stated that he received a call on the material day at around 1.00 am from Bware Sub-Location that a suspect had been arrested by members of the public on allegation of having assaulted Mr,Elphas Obogo. He stated that when they visited the Complainant he was seriously injured with deep cuts. When they interrogated the Complainant, he stated that he was attacked by 4 men while coming from a funeral wake.
PW6 further stated that a n identification parade was conducted to ascertain the identity of the perpetrator and the Complainant picked Bernard as one of the those who assaulted him. The weapon used a panga that had blood stains was recovered and handed over to the police as exhibit.
PW7 NO. 233202 the OCS at Uriri police station, testified that he conducted the identification parade and the Appellant was identified in all the line ups. He further stated that the accused signed the parade form and he produced it as an exhibit in court.
When placed on defense, the Appellant gave sworn evidence but he did not call a witness. In his defence, the Appellant testified on the events surrounding his arrest and how the identification parade was conducted. He further testified that since the Complainant did not recognize him, he lied to have seen him at the scene of the attack yet there were no lights neither did the Complainant mention him in his statement. He therefore stated that the allegation against him was not true.
The appeal herein was canvassed by way of written submissions.
The Appellant in his submissions sated that the PW1 did not positively identify his physical features and mode of dressing in his statement to the police. It is his submission that the fact that visual identification of a stranger without description of his physical features is of little evidential value. He further submitted that the circumstances at the scene of the offence as recounted by witnesses was difficult and did not favour a correct identification.
The Appellant relied on the case of R v Turn burn in which it was held that evidence relating to identification must serialize carefully and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from possible error.
The Appellant further submitted that omission of evidence at the time of prosecution in court is fatal. He further stated that it was common ground that PW1 did not give to anyone a description of any of the robbers that all he said was that he was not able to know the identity of the 3rd person. He submitted that that the failure to elicit a description of robbers was a lapse on the part of the investigating officer. The Appellant further submitted that Section 107 of the Evidence Act provides that whoever wants the court to believe his facts should be able to prove them to the required standards. He further submitted that in a case of robbery proper identification of the robbers is always an important element and that the condition of identification of the robbers in this case was not favourable. He stated that the Complainant did not describe how the assailant looked like to the police raising the question as to whether he had identified the assailant at the identification parade. The Appellant further emphasized on the importance of conducting an identification parade and relied on the case of David Mwita Wanja & 2 others vs Republic in which the court stated that:-
The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29. There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia v Republic [1986] KLR 422 where the court stated at page 424: - “It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”
The Respondent’s submissions are dated 23rd September 2025 and are to the effect that Article 50(2) (g) & (h) of the Constitution provides for the right to legal representation of the accused person by an Advocate of their choice. It was submitted that the Appellant was well informed of his right to legal representation during plea and he clearly understood the trial process and was able to effectively cross examine witnesses. That the fact that he had no legal representation was not fatal to the trial as he demonstrated that he clearly understood the charge against him and his rights were not infringed neither was there any prejudice occasioned.
On whether the prosecution proved the offence of robbery to the required standards it was submitted that under Section 296 of the Penal Code the prosecution is supposed to prove one of the three elements of the offence of robbery with violence and that PW1 stated that the attackers were well known to him and he was able to identify them because of security lights from the nearby shop. That the Complainant said that the Appellant cut him on his right leg with a panga. It was further submitted that PW3 confirmed the extent of Complainant’s injuries and the same was corroborated by PW4 as they took him to hospital. The Respondent Counsel submitted that they had proved that the Appellant was in company of two other people and that he was armed with a panga which he used to cut the Complainant and therefore they had proved the offence of robbery with violence beyond reasonable doubt.
On whether the sentence was harsh and excessive, the Respondent Counsel relied on the case of Bernard Kimani Gacheru Vs Republic [2002]eKLRwhere it was held that:-
“ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
It was submitted that the sentence was sufficient given the circumstances of the case.
The court was therefore urged to dismiss the appeal.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. The Court must bear in mind that it did not see or hear the witnesses and should therefore make due allowance for that fact.
The classic statement of that duty remains the decision in Okeno v Republic [1972] EA 32. The first appellate court must itself weigh conflicting evidence and draw its own conclusions, subject to the qualification that it should give due allowance for the advantage enjoyed by the trial court in seeing and hearing the witnesses.
This court has accordingly considered the entire evidence placed before the trial court, the Appellant's defence, the grounds of appeal and the rival submissions.and the following issues arise for determination:-
. i. Whether the prosecution proved the ingredients of robbery with violence;
ii. Whether the Appellant was positively and reliably identified as one of the persons who committed the robbery;
iii. Whether the alleged contradictions and discrepancies in the prosecution evidence were material;
iv. Whether the Appellant's rights under Article 50(2)(g) and (h) of the Constitution were violated; and
v. What orders should follow.
On whether the prosecution proved the ingredients of the offence of robbery with violence, Section 296(2) of the Penal Code provides for the offence of robbery with violence. It is settled that the prosecution need only establish one of the circumstances specified in the provision, namely that the offender was armed with a dangerous or offensive weapon, was in the company of one or more persons, or immediately before, during or after the robbery used or threatened to use personal violence to the victim.
In the present case, the evidence of PW1 was that he was confronted by three men; that one held him while the Appellant allegedly cut him with a panga; and that his mobile phone and money were stolen. He sustained cuts to the right thigh, right hand and right leg.
PW2, a Clinical Officer, examined the complainant and confirmed that he had tenderness and swelling and a deep cut wound on the right thigh. The P3 form was produced in evidence and the injuries were classified as harm. PW3 found the complainant injured along the road and assisted in having him taken to hospital.PW4 testified that he saw the Appellant carrying a panga at about 5.30 a.m., while PW5, the Assistant Chief, testified concerning the Appellant's presence at the scene and his subsequent arrest. The evidence therefore establishes, to the required standard, that the complainant was violently assaulted and robbed. There is also evidence that the assailants were armed and that the complainant suffered physical injuries.
The critical issue, however, is not whether the complainant was robbed. It plainly appears that he was. The crucial issue is whether the Appellant was one of the robbers. In a criminal case the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. The burden does not shift merely because the accused has been arrested, placed on an identification parade or charged before court.
The prosecution case against the Appellant rests substantially on identification evidence. PW1 testified that he encountered three men while returning from a funeral at about 5.00 a.m. He stated that he knew the Appellant by appearance and that there were security or street lights at the shop of Absalom Luanga. He stated that he was able to recognise the Appellant and another person known as Anzira. He further testified that the Appellant cut him with a panga during the attack. He subsequently identified the Appellant at an identification parade. Identification evidence, particularly where it is substantially the basis of a conviction, must be examined with the greatest care.
In the case of Wamunga v Republic [1989] KECA 47 (KLR), the Court of Appeal emphasised that where the prosecution case depends wholly or substantially on identification or recognition, the court must satisfy itself that the circumstances were favourable and free from the possibility of error. The Court further observed that recognition may be more reliable than identification of a stranger, but even recognition can be mistaken.
The same caution derives from the principles in R v Turnbull [1976] 3 All ER 549, which require the court to consider, among other matters, the length of time the witness observed the suspect, the distance between them, the lighting conditions, whether anything obstructed the witness's view, whether the witness had seen the person before and how long elapsed between the observation and the subsequent identification.
This court has therefore subjected PW1's evidence to that scrutiny. The incident occurred at approximately 5.00 a.m. It was therefore at or around dawn. PW1 stated that there was lighting from a shop. The prosecution did not, however, lead sufficiently detailed evidence concerning the nature, intensity or position of that light, the distance between PW1 and the Appellant, or the duration for which PW1 had the opportunity to observe the Appellant's face. The circumstances were also inherently stressful. PW1 was suddenly confronted by several persons, was physically restrained, cut with a panga and ultimately lost consciousness. It is not correct to say that a witness who is under attack can never make a reliable identification. Neither is recognition rendered unreliable merely because it occurs during a violent incident. What the law requires is a careful examination of the particular circumstances to determine whether there is a real possibility of mistaken identification.
In the present case, there is a further matter that causes concern. The Appellant submitted that PW1 did not provide a description of the Appellant to the police before the identification parade and that he did not name him in his initial statement.
This court is however, cautious about treating the failure to give a prior description as automatically destroying the identification evidence. The Court of Appeal has held that failure to give a description before a parade does not, by itself, invalidate the parade. The relevant question is the weight to be attached to the identification evidence in the circumstances of the case. This was the holding in the case of Douglas Kinyua Njeru v Republic [2015] KECA 939 (KLR).
The same principle was recognized in Donald Atemia Sipendi v Republic[2019] KEHC 10855 (KLR), where the High Court observed that the failure to give a prior description does not automatically invalidate an identification parade. The court must consider the totality of the evidence and the weight to be attached to the identification.
Consequently, the question before this court is not simply whether PW1 gave a description before the parade. The question is whether, notwithstanding that omission, the circumstances of the alleged recognition and the subsequent identification were sufficiently reliable to sustain a conviction.
PW7 testified that he conducted the identification parade and that the Appellant was identified in all the line-ups. The Appellant signed the parade form, which was produced as an exhibit.
A properly conducted identification parade can lend assurance to identification evidence. However, an identification parade is not itself proof that the person identified was the perpetrator. Its evidential value depends upon the reliability of the witness's recollection and the fairness of the procedure.
In David Mwita Wanja & 2 Others v Republic [2007] KECA 324 (KLR), the Court of Appeal emphasized the need for scrupulously fair identification parades and noted that a badly conducted parade may substantially diminish or nullify the evidential value of the identification.
In the present case, the parade form was produced, and PW7 testified that the Appellant was identified. There is no sufficient evidence before this Court demonstrating that the parade itself was improperly conducted. This court therefore does not find that the parade was invalid. But that does not conclude the matter. The Court must still determine the weight to attach to the identification.
The prosecution sought to support the complainant's evidence through the testimony of PW4, PW5 and PW6. PW4 stated that he saw the Appellant carrying a panga at approximately 5.30 a.m. That evidence is potentially significant. However, the record as supplied does not sufficiently demonstrate the precise circumstances in which PW4 saw the Appellant, the distance between them, the lighting available to PW4, or whether PW4 actually witnessed the robbery itself. Merely seeing a person carrying a panga at about the time of the offence does not, without more, establish that the person participated in the robbery. It is necessary to connect the observation to the offence.
PW5's evidence appears to concern information that the Appellant had been seen at the scene and was subsequently arrested by members of the public. To the extent that PW5 merely repeated information received from other persons, that evidence cannot independently establish the Appellant's participation in the robbery.
PW6 testified that a blood-stained panga was recovered and handed over to the police. There is, however, no evidence in the material before me of forensic analysis linking the blood on the panga to the complainant or otherwise linking the weapon to the Appellant. The mere recovery of a blood-stained panga therefore proves, at most, that such a weapon was recovered. It does not establish beyond reasonable doubt that the Appellant was the person who wielded it.
The Appellant also complained of contradictions in the prosecution case. Not every discrepancy in evidence is material. Courts are entitled to disregard minor inconsistencies which arise from normal human recollection, provided that the core of the prosecution case remains intact. However, contradictions which go to the identity of the accused, the occurrence of the offence or the reliability of a material witness require closer scrutiny. There is an apparent discrepancy regarding the number of assailants. PW1 referred to three men, whereas PW6 recorded the complainant as having stated that he was attacked by four men. Standing alone, that discrepancy would not necessarily be fatal. A victim confronted by several violent assailants may not accurately count them. More concerning is the apparent discrepancy in the chronology. PW1 placed the robbery at about 5.00 a.m.; PW3 referred to 5.30 a.m.; PW4 similarly referred to 5.30 a.m.; yet PW6 is recorded as having stated that he received information at about 1.00 a.m. concerning the arrest of a suspect. If the reference to 1.00 a.m. is what PW6 actually stated, the chronology is plainly problematic because the alleged robbery had not, on the prosecution's own evidence, occurred by that time. It is possible that the reference to 1.00 a.m. in the record is a typographical or transcription error. However, the trial court ought to have resolved the discrepancy if it was raised before it. An appellate court cannot simply assume that a material discrepancy is an error in transcription where the original proceedings have not demonstrated that to be so. I do not, however, find that these discrepancies alone would justify an acquittal. Their importance lies in the fact that they reinforce the need for the Court to scrutinise the identification evidence with particular care.
The Appellant submitted that PW1 did not mention his name in the initial report and did not give a description of him. This submission is important because a contemporaneous report may provide an assurance as to whether a witness genuinely recognised a particular person immediately after an incident. Unfortunately, the material supplied to this Court does not reproduce the actual contents of PW1's first report or statement. The prosecution case, as summarised, is that while he was in hospital PW1 gave the police the name and description of two persons who had attacked him. That evidence, if accepted, materially supports the prosecution case. However, the Appellant contended that the first statement did not mention him. That creates a direct conflict between the Appellant's submission and the prosecution's account of what PW1 reported. In the absence of the actual statement,this court must determine the matter on the evidence recorded at trial. PW1 expressly testified that he gave the police the names and description of two of the persons who attacked him while he was at hospital. He subsequently identified the Appellant at the parade.
This court therefore cannot properly find that the Appellant's name was wholly absent from the initial report merely on the basis of the Appellant's submission.
There is a further important consideration. PW1 did not describe the Appellant merely as a stranger whom he had seen once. His evidence was that he knew the Appellant by appearance, although he stated that the Appellant's father was well known to him. The prosecution case was therefore one of recognition.Recognition is generally capable of providing stronger assurance than identification of a complete stranger, but it is not infallible. As stated in Wamunga, even recognition can be mistaken. The question therefore becomes whether PW1's evidence of recognition, considered together with the surrounding circumstances and the other evidence, leaves a reasonable possibility of mistaken identity. PW1 stated that there was lighting at the shop where the incident occurred. He identified the Appellant as one of the attackers and specifically attributed the infliction of the injuries to him. His evidence was corroborated as to the injuries by PW2 and as to the aftermath by PW3. PW4 also placed the Appellant in the vicinity at approximately the relevant time while carrying a panga. The evidence is therefore not a case resting exclusively upon a bare dock identification. Nevertheless, PW4's evidence does not expressly establish that he saw the Appellant attack PW1. Nor was the stolen property recovered from the Appellant. The blood-stained panga was not scientifically linked to him. The Court is consequently left with PW1's alleged recognition as the principal direct evidence identifying the Appellant as the robber.
On whether the alleged recognition was free from reasonable possibility of error, the Court of Appeal in Wamunga warned that identification evidence must be examined with the greatest care, particularly where the circumstances are difficult. In the present matter, the robbery occurred at about 5.00 a.m. There was some lighting, according to PW1, but the prosecution did not provide detailed evidence regarding the quality or otherwise of that lighting. The attack was sudden and violent. PW1 was assaulted and lost consciousness. On the other hand, PW1 claimed prior familiarity with the Appellant and stated that he saw him in the light emanating from the nearby shop. This court has considered the possibility of mistaken recognition. I have also considered the fact that PW1 made a report while at hospital, the subsequent identification parade, and PW4's evidence placing the Appellant near the scene with a panga.
On the totality of the evidence, this court is persuaded that the identification of the Appellant was not merely the product of a subsequent identification parade. There was evidence of prior recognition and evidence placing the Appellant in the vicinity at about the material time.
The question nevertheless remains whether that evidence reaches the threshold of proof beyond reasonable doubt.
In the assessment, of this court the evidence presents substantial weaknesses. The lighting circumstances were not adequately described. The alleged first report and description were not sufficiently developed before the trial court. There is an unexplained discrepancy concerning the time at which the police received the report of the arrest. There is also no independent forensic or possession evidence linking the Appellant to the stolen property or the panga. The prosecution case therefore depends to a very significant extent on PW1's recognition. Where identification is the principal connecting evidence, the court must be satisfied not merely that the witness was honest but that the circumstances made it sufficiently reliable. This court is not satisfied that the trial court subjected this evidence to the requisite degree of scrutiny. The trial court was required to interrogate the quality of the lighting, the opportunity for observation, the distance, duration, the stressful circumstances, the first report, and the relationship or previous familiarity between PW1 and the Appellant. It is the view of this court that the trial court placed excessive reliance on the fact that PW1 subsequently identified the Appellant at the identification parade. That was an error of approach. The parade could reinforce an otherwise reliable identification; it could not itself supply the reliability that was lacking in the initial observation.
The principles in David Mwita Wanja make it clear that the evidential value of an identification parade depends upon the circumstances in which it is conducted and upon the quality of the underlying identification evidence. This court therefore find that the prosecution did not exclude the reasonable possibility of mistaken identification. Further if indeed the Complainant recognised the Appellant during the incident what was the reason for the identification parade? Identification parades are conducted where the assailant was a stranger to the complainant.
Turning briefly to the constitutional ground, Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate, while Article 50(2)(h) provides for an advocate at State expense where substantial injustice would otherwise result. The Respondent su
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Particulars of the offence are that the Appellant on the 9th November,2021 at about 0500 hours at Edemba Village,Bware Sub-Location, South Kanyamkago Location, Uriri Sub- County, in Migori County while armed with dangerous weapons namely panga robbed Elphas Ong’ong’a Nyambega one Tecno phone black in colour worth Ksh 4800/= and cash Ksh. 1800/=
Based on the evidence of six (6) Prosecution witnesses and the Appellant’s sworn testimony the trial Magistrate convicted the Appellant and sentenced him to serve 40 years imprisonment.
The Appellant was aggrieved by the conviction and sentence and he lodged the appeal herein through a Petition of Appeal dated 09/10/2023 on the following grounds:
1. That he pleaded not guilty to the charge .
2. That the trial court erred in both law and facts by failing to comply with article 50(2) (g)h) of the Constitution of Kenya,2010.
3. That the trial court erred in both law and facts by not observing that the ingredients of the offence herein were not proved to the required starndards in law and facts.
4. That the trial court erred both in law and facts by not observing that the case had grave contradictions which could not sustain a conviction but a total acquittal.
It was the prosecution’s case that the Appellant together with others robbed and injured the Complainant on 9/11/2021 on his way home from a funeral in the neighbourhood.
Pw1 testified and stated that he had left a funeral at around 5 am when he met the Appellant who was in the company of 2 others.He stated that he knew the Appellant by his appearance but the Appellant’s father was well known to him.Since there were street lights at the shop of Absalom Luanga where he was passing at the time of the incident, he was able to recognise the Appellant and another person called Anzira. That one of thugs held his shirt and as he was struggling to free himself, the Appellant cut him on the right leg near the thigh and he fell down. That the Appellant went further and cut his right hand and the right leg. The Complaint further stated that the 3 men stole his Tecno phone and his wallet containing Ksh. 1800, a pair of trouser, a pair of shoes and his cap. He stated that he lost consciousness and he woke up to find himself at Ombo mission hospital. It was his testimony that the matter was reported to the police at Uriri Police Station by his wife and she was issued with a P3 form. This was while he was still at the hospital. He stated that the police visited him at the hospital and he gave them the name and description of the 2 persons who had injured and robbed him. An identification parade was called and he was able to identify the Appellant at the parade
Pw2 a Clinical Officer based at Uriri Sub-County Hospital testified that he examined the Complainant had tenderness swelling on the whole body. He had a deep cut wound on the right thigh and he had been stitched and given antibiotic. That P3 form was issued and dully filled by PW2 who produced it in court. PW2 classified injuries suffered by the Complainant as harm.
PW3’s testimony was that on the material day he had left his home at 5.30 am to go and open his shop when he was informed by pupils that there was a man who was injured along the road. When he went to check on the said person, he found out that it was Ongongo. He alerted his family members who came to the scene. He further testified that he called for a motor vehicle which came and escorted the Complainant to the hospital.
PW4 also testified and reiterated what PW1 stated that on the material day he had seen the Appellant carrying a panga at around 5.30 am and he was talking to himself. He testified to the effect that he had identified the Appellant as the perpetrator of the offence.
PW5 the Assistant Chief reiterated what PW4 stated that the Appellant had been seen at the scene of the attack and that members of the public arrested him and he was escorted to Uriri police station.
PW6 No. 109922 PC …….. attached to Kamagambo Police station in Rongo Sub-County was the Investigating Officer in this case and he stated that he received a call on the material day at around 1.00 am from Bware Sub-Location that a suspect had been arrested by members of the public on allegation of having assaulted Mr,Elphas Obogo. He stated that when they visited the Complainant he was seriously injured with deep cuts. When they interrogated the Complainant, he stated that he was attacked by 4 men while coming from a funeral wake.
PW6 further stated that a n identification parade was conducted to ascertain the identity of the perpetrator and the Complainant picked Bernard as one of the those who assaulted him. The weapon used a panga that had blood stains was recovered and handed over to the police as exhibit.
PW7 NO. 233202 the OCS at Uriri police station, testified that he conducted the identification parade and the Appellant was identified in all the line ups. He further stated that the accused signed the parade form and he produced it as an exhibit in court.
When placed on defense, the Appellant gave sworn evidence but he did not call a witness. In his defence, the Appellant testified on the events surrounding his arrest and how the identification parade was conducted. He further testified that since the Complainant did not recognize him, he lied to have seen him at the scene of the attack yet there were no lights neither did the Complainant mention him in his statement. He therefore stated that the allegation against him was not true.
The appeal herein was canvassed by way of written submissions.
The Appellant in his submissions sated that the PW1 did not positively identify his physical features and mode of dressing in his statement to the police. It is his submission that the fact that visual identification of a stranger without description of his physical features is of little evidential value. He further submitted that the circumstances at the scene of the offence as recounted by witnesses was difficult and did not favour a correct identification.
The Appellant relied on the case of R v Turn burn in which it was held that evidence relating to identification must serialize carefully and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from possible error.
The Appellant further submitted that omission of evidence at the time of prosecution in court is fatal. He further stated that it was common ground that PW1 did not give to anyone a description of any of the robbers that all he said was that he was not able to know the identity of the 3rd person. He submitted that that the failure to elicit a description of robbers was a lapse on the part of the investigating officer. The Appellant further submitted that Section 107 of the Evidence Act provides that whoever wants the court to believe his facts should be able to prove them to the required standards. He further submitted that in a case of robbery proper identification of the robbers is always an important element and that the condition of identification of the robbers in this case was not favourable. He stated that the Complainant did not describe how the assailant looked like to the police raising the question as to whether he had identified the assailant at the identification parade. The Appellant further emphasized on the importance of conducting an identification parade and relied on the case of David Mwita Wanja & 2 others vs Republic in which the court stated that:-
The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29. There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia v Republic [1986] KLR 422 where the court stated at page 424: - “It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”
The Respondent’s submissions are dated 23rd September 2025 and are to the effect that Article 50(2) (g) & (h) of the Constitution provides for the right to legal representation of the accused person by an Advocate of their choice. It was submitted that the Appellant was well informed of his right to legal representation during plea and he clearly understood the trial process and was able to effectively cross examine witnesses. That the fact that he had no legal representation was not fatal to the trial as he demonstrated that he clearly understood the charge against him and his rights were not infringed neither was there any prejudice occasioned.
On whether the prosecution proved the offence of robbery to the required standards it was submitted that under Section 296 of the Penal Code the prosecution is supposed to prove one of the three elements of the offence of robbery with violence and that PW1 stated that the attackers were well known to him and he was able to identify them because of security lights from the nearby shop. That the Complainant said that the Appellant cut him on his right leg with a panga. It was further submitted that PW3 confirmed the extent of Complainant’s injuries and the same was corroborated by PW4 as they took him to hospital. The Respondent Counsel submitted that they had proved that the Appellant was in company of two other people and that he was armed with a panga which he used to cut the Complainant and therefore they had proved the offence of robbery with violence beyond reasonable doubt.
On whether the sentence was harsh and excessive, the Respondent Counsel relied on the case of Bernard Kimani Gacheru Vs Republic [2002]eKLRwhere it was held that:-
“ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
It was submitted that the sentence was sufficient given the circumstances of the case.
The court was therefore urged to dismiss the appeal.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. The Court must bear in mind that it did not see or hear the witnesses and should therefore make due allowance for that fact.
The classic statement of that duty remains the decision in Okeno v Republic [1972] EA 32. The first appellate court must itself weigh conflicting evidence and draw its own conclusions, subject to the qualification that it should give due allowance for the advantage enjoyed by the trial court in seeing and hearing the witnesses.
This court has accordingly considered the entire evidence placed before the trial court, the Appellant's defence, the grounds of appeal and the rival submissions.and the following issues arise for determination:-
. i. Whether the prosecution proved the ingredients of robbery with violence;
ii. Whether the Appellant was positively and reliably identified as one of the persons who committed the robbery;
iii. Whether the alleged contradictions and discrepancies in the prosecution evidence were material;
iv. Whether the Appellant's rights under Article 50(2)(g) and (h) of the Constitution were violated; and
v. What orders should follow.
On whether the prosecution proved the ingredients of the offence of robbery with violence, Section 296(2) of the Penal Code provides for the offence of robbery with violence. It is settled that the prosecution need only establish one of the circumstances specified in the provision, namely that the offender was armed with a dangerous or offensive weapon, was in the company of one or more persons, or immediately before, during or after the robbery used or threatened to use personal violence to the victim.
In the present case, the evidence of PW1 was that he was confronted by three men; that one held him while the Appellant allegedly cut him with a panga; and that his mobile phone and money were stolen. He sustained cuts to the right thigh, right hand and right leg.
PW2, a Clinical Officer, examined the complainant and confirmed that he had tenderness and swelling and a deep cut wound on the right thigh. The P3 form was produced in evidence and the injuries were classified as harm. PW3 found the complainant injured along the road and assisted in having him taken to hospital.PW4 testified that he saw the Appellant carrying a panga at about 5.30 a.m., while PW5, the Assistant Chief, testified concerning the Appellant's presence at the scene and his subsequent arrest. The evidence therefore establishes, to the required standard, that the complainant was violently assaulted and robbed. There is also evidence that the assailants were armed and that the complainant suffered physical injuries.
The critical issue, however, is not whether the complainant was robbed. It plainly appears that he was. The crucial issue is whether the Appellant was one of the robbers. In a criminal case the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. The burden does not shift merely because the accused has been arrested, placed on an identification parade or charged before court.
The prosecution case against the Appellant rests substantially on identification evidence. PW1 testified that he encountered three men while returning from a funeral at about 5.00 a.m. He stated that he knew the Appellant by appearance and that there were security or street lights at the shop of Absalom Luanga. He stated that he was able to recognise the Appellant and another person known as Anzira. He further testified that the Appellant cut him with a panga during the attack. He subsequently identified the Appellant at an identification parade. Identification evidence, particularly where it is substantially the basis of a conviction, must be examined with the greatest care.
In the case of Wamunga v Republic [1989] KECA 47 (KLR), the Court of Appeal emphasised that where the prosecution case depends wholly or substantially on identification or recognition, the court must satisfy itself that the circumstances were favourable and free from the possibility of error. The Court further observed that recognition may be more reliable than identification of a stranger, but even recognition can be mistaken.
The same caution derives from the principles in R v Turnbull [1976] 3 All ER 549, which require the court to consider, among other matters, the length of time the witness observed the suspect, the distance between them, the lighting conditions, whether anything obstructed the witness's view, whether the witness had seen the person before and how long elapsed between the observation and the subsequent identification.
This court has therefore subjected PW1's evidence to that scrutiny. The incident occurred at approximately 5.00 a.m. It was therefore at or around dawn. PW1 stated that there was lighting from a shop. The prosecution did not, however, lead sufficiently detailed evidence concerning the nature, intensity or position of that light, the distance between PW1 and the Appellant, or the duration for which PW1 had the opportunity to observe the Appellant's face. The circumstances were also inherently stressful. PW1 was suddenly confronted by several persons, was physically restrained, cut with a panga and ultimately lost consciousness. It is not correct to say that a witness who is under attack can never make a reliable identification. Neither is recognition rendered unreliable merely because it occurs during a violent incident. What the law requires is a careful examination of the particular circumstances to determine whether there is a real possibility of mistaken identification.
In the present case, there is a further matter that causes concern. The Appellant submitted that PW1 did not provide a description of the Appellant to the police before the identification parade and that he did not name him in his initial statement.
This court is however, cautious about treating the failure to give a prior description as automatically destroying the identification evidence. The Court of Appeal has held that failure to give a description before a parade does not, by itself, invalidate the parade. The relevant question is the weight to be attached to the identification evidence in the circumstances of the case. This was the holding in the case of Douglas Kinyua Njeru v Republic [2015] KECA 939 (KLR).
The same principle was recognized in Donald Atemia Sipendi v Republic[2019] KEHC 10855 (KLR), where the High Court observed that the failure to give a prior description does not automatically invalidate an identification parade. The court must consider the totality of the evidence and the weight to be attached to the identification.
Consequently, the question before this court is not simply whether PW1 gave a description before the parade. The question is whether, notwithstanding that omission, the circumstances of the alleged recognition and the subsequent identification were sufficiently reliable to sustain a conviction.
PW7 testified that he conducted the identification parade and that the Appellant was identified in all the line-ups. The Appellant signed the parade form, which was produced as an exhibit.
A properly conducted identification parade can lend assurance to identification evidence. However, an identification parade is not itself proof that the person identified was the perpetrator. Its evidential value depends upon the reliability of the witness's recollection and the fairness of the procedure.
In David Mwita Wanja & 2 Others v Republic [2007] KECA 324 (KLR), the Court of Appeal emphasized the need for scrupulously fair identification parades and noted that a badly conducted parade may substantially diminish or nullify the evidential value of the identification.
In the present case, the parade form was produced, and PW7 testified that the Appellant was identified. There is no sufficient evidence before this Court demonstrating that the parade itself was improperly conducted. This court therefore does not find that the parade was invalid. But that does not conclude the matter. The Court must still determine the weight to attach to the identification.
The prosecution sought to support the complainant's evidence through the testimony of PW4, PW5 and PW6. PW4 stated that he saw the Appellant carrying a panga at approximately 5.30 a.m. That evidence is potentially significant. However, the record as supplied does not sufficiently demonstrate the precise circumstances in which PW4 saw the Appellant, the distance between them, the lighting available to PW4, or whether PW4 actually witnessed the robbery itself. Merely seeing a person carrying a panga at about the time of the offence does not, without more, establish that the person participated in the robbery. It is necessary to connect the observation to the offence.
PW5's evidence appears to concern information that the Appellant had been seen at the scene and was subsequently arrested by members of the public. To the extent that PW5 merely repeated information received from other persons, that evidence cannot independently establish the Appellant's participation in the robbery.
PW6 testified that a blood-stained panga was recovered and handed over to the police. There is, however, no evidence in the material before me of forensic analysis linking the blood on the panga to the complainant or otherwise linking the weapon to the Appellant. The mere recovery of a blood-stained panga therefore proves, at most, that such a weapon was recovered. It does not establish beyond reasonable doubt that the Appellant was the person who wielded it.
The Appellant also complained of contradictions in the prosecution case. Not every discrepancy in evidence is material. Courts are entitled to disregard minor inconsistencies which arise from normal human recollection, provided that the core of the prosecution case remains intact. However, contradictions which go to the identity of the accused, the occurrence of the offence or the reliability of a material witness require closer scrutiny. There is an apparent discrepancy regarding the number of assailants. PW1 referred to three men, whereas PW6 recorded the complainant as having stated that he was attacked by four men. Standing alone, that discrepancy would not necessarily be fatal. A victim confronted by several violent assailants may not accurately count them. More concerning is the apparent discrepancy in the chronology. PW1 placed the robbery at about 5.00 a.m.; PW3 referred to 5.30 a.m.; PW4 similarly referred to 5.30 a.m.; yet PW6 is recorded as having stated that he received information at about 1.00 a.m. concerning the arrest of a suspect. If the reference to 1.00 a.m. is what PW6 actually stated, the chronology is plainly problematic because the alleged robbery had not, on the prosecution's own evidence, occurred by that time. It is possible that the reference to 1.00 a.m. in the record is a typographical or transcription error. However, the trial court ought to have resolved the discrepancy if it was raised before it. An appellate court cannot simply assume that a material discrepancy is an error in transcription where the original proceedings have not demonstrated that to be so. I do not, however, find that these discrepancies alone would justify an acquittal. Their importance lies in the fact that they reinforce the need for the Court to scrutinise the identification evidence with particular care.
The Appellant submitted that PW1 did not mention his name in the initial report and did not give a description of him. This submission is important because a contemporaneous report may provide an assurance as to whether a witness genuinely recognised a particular person immediately after an incident. Unfortunately, the material supplied to this Court does not reproduce the actual contents of PW1's first report or statement. The prosecution case, as summarised, is that while he was in hospital PW1 gave the police the name and description of two persons who had attacked him. That evidence, if accepted, materially supports the prosecution case. However, the Appellant contended that the first statement did not mention him. That creates a direct conflict between the Appellant's submission and the prosecution's account of what PW1 reported. In the absence of the actual statement,this court must determine the matter on the evidence recorded at trial. PW1 expressly testified that he gave the police the names and description of two of the persons who attacked him while he was at hospital. He subsequently identified the Appellant at the parade.
This court therefore cannot properly find that the Appellant's name was wholly absent from the initial report merely on the basis of the Appellant's submission.
There is a further important consideration. PW1 did not describe the Appellant merely as a stranger whom he had seen once. His evidence was that he knew the Appellant by appearance, although he stated that the Appellant's father was well known to him. The prosecution case was therefore one of recognition.Recognition is generally capable of providing stronger assurance than identification of a complete stranger, but it is not infallible. As stated in Wamunga, even recognition can be mistaken. The question therefore becomes whether PW1's evidence of recognition, considered together with the surrounding circumstances and the other evidence, leaves a reasonable possibility of mistaken identity. PW1 stated that there was lighting at the shop where the incident occurred. He identified the Appellant as one of the attackers and specifically attributed the infliction of the injuries to him. His evidence was corroborated as to the injuries by PW2 and as to the aftermath by PW3. PW4 also placed the Appellant in the vicinity at approximately the relevant time while carrying a panga. The evidence is therefore not a case resting exclusively upon a bare dock identification. Nevertheless, PW4's evidence does not expressly establish that he saw the Appellant attack PW1. Nor was the stolen property recovered from the Appellant. The blood-stained panga was not scientifically linked to him. The Court is consequently left with PW1's alleged recognition as the principal direct evidence identifying the Appellant as the robber.
On whether the alleged recognition was free from reasonable possibility of error, the Court of Appeal in Wamunga warned that identification evidence must be examined with the greatest care, particularly where the circumstances are difficult. In the present matter, the robbery occurred at about 5.00 a.m. There was some lighting, according to PW1, but the prosecution did not provide detailed evidence regarding the quality or otherwise of that lighting. The attack was sudden and violent. PW1 was assaulted and lost consciousness. On the other hand, PW1 claimed prior familiarity with the Appellant and stated that he saw him in the light emanating from the nearby shop. This court has considered the possibility of mistaken recognition. I have also considered the fact that PW1 made a report while at hospital, the subsequent identification parade, and PW4's evidence placing the Appellant near the scene with a panga.
On the totality of the evidence, this court is persuaded that the identification of the Appellant was not merely the product of a subsequent identification parade. There was evidence of prior recognition and evidence placing the Appellant in the vicinity at about the material time.
The question nevertheless remains whether that evidence reaches the threshold of proof beyond reasonable doubt.
In the assessment, of this court the evidence presents substantial weaknesses. The lighting circumstances were not adequately described. The alleged first report and description were not sufficiently developed before the trial court. There is an unexplained discrepancy concerning the time at which the police received the report of the arrest. There is also no independent forensic or possession evidence linking the Appellant to the stolen property or the panga. The prosecution case therefore depends to a very significant extent on PW1's recognition. Where identification is the principal connecting evidence, the court must be satisfied not merely that the witness was honest but that the circumstances made it sufficiently reliable. This court is not satisfied that the trial court subjected this evidence to the requisite degree of scrutiny. The trial court was required to interrogate the quality of the lighting, the opportunity for observation, the distance, duration, the stressful circumstances, the first report, and the relationship or previous familiarity between PW1 and the Appellant. It is the view of this court that the trial court placed excessive reliance on the fact that PW1 subsequently identified the Appellant at the identification parade. That was an error of approach. The parade could reinforce an otherwise reliable identification; it could not itself supply the reliability that was lacking in the initial observation.
The principles in David Mwita Wanja make it clear that the evidential value of an identification parade depends upon the circumstances in which it is conducted and upon the quality of the underlying identification evidence. This court therefore find that the prosecution did not exclude the reasonable possibility of mistaken identification. Further if indeed the Complainant recognised the Appellant during the incident what was the reason for the identification parade? Identification parades are conducted where the assailant was a stranger to the complainant.
Turning briefly to the constitutional ground, Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate, while Article 50(2)(h) provides for an advocate at State expense where substantial injustice would otherwise result. The Respondent su
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