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JudgmentBERNARD FUNDI ALBERT VS The Republic16 min read

BERNARD FUNDI ALBERT VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. J.W. Gichimu (S.P.M) in the Magistrate’s Court at Runyenjes Criminal Case No. E011 of 2023 delivered on 15th November 2023)


  1. The appellant filed a petition of appeal dated 11th December, 2023 seeking for orders that the appeal be allowed, the conviction be quashed, the death sentence imposed be set aside and the appellant be set at liberty. The appeal is premised on the grounds that the learned trial magistrate erred in law and fact:
    1. By convicting the appellant based on evidence marred by inconsistencies, doubts and contradictions;
    2. By convicting the appellant without giving him a chance to adduce his sworn evidence and make submissions hence contravening Article 50 of the Constitution;
    3. By relying on identification of the appellant which was not free of error;
    4. By failing to consider that the prosecution failed to prove its case beyond reasonable doubt;
    5. By imposing a death penalty on the appellant without considering human dignity;
    6. By failing to follow the requirement of section 211 of the Criminal procedure Code knowingly;
    7. By failing to consider section 216 of the Criminal Procedure Code before passing the sentence; and
    8. By failing to consider that the evidence adduced by the prosecution was contrary to section 25(1&2) of the Penal Code and Articles 50(2)(b), 25(c), 27(1,2&4), 28 and 26(1) of the Constitution.
  2. The appellant was charged with 3 counts. The 1st count was the offence of robbery with violence contrary to section 295 as read together with section 296 of the Penal Code. The particulars of the offence are that on 02nd December 2022 at about 0210HRS at Gichiche shopping center within Embu East subcounty in Embu County, the appellant, jointly with others not before court, while armed with crude weapons, robbed Catherine Wanyaga Njiru of 2 mobile phones of make Itel valued at Kshs.6,000/= and Oking valued at Kshs.1,500/= and at the time of such robbery harmed the said Catherine Wanyaga Njiru.
  3. The alternative charge to the 1st count was handling stolen goods contrary to section 332(1) of the Penal Code, whose particulars are that on 02nd December 2022 at about 1700HRS at Embu Police Station within Embu County, otherwise than in the course of robbery, the appellant dishonestly detained 2 mobile phones makes Itel and Oking, knowing or having reason to believe to be stolen goods.
  4. The 2nd count was breaking into a building and committing a felony contrary to section 306(a) of the Penal Code. The particulars are that on 02nd December 2022 at Gichiche trading center within Embu East subcounty, the appellant, jointly with others not before court, broke and entered into ‘Paucher wines spirit’ and stole assorted liquor valued at Kshs.150,100/= the property of Paul Kinyua Gakiahi.
  5. The 3rd count was stealing contrary to section 268(1) as read together with section 275 of the Penal Code. The particulars of the offence are that on 02nd December 2022 at Gichiche trading center within Embu County, the appellant, jointly with others not before court, stole an Itel mobile phone worth Kshs.7,000/= the property of Michael Muriithi Njagi. The alternative count to the 3rd count was handling stolen goods contrary to section 332(1) of the Penal Code, whose particulars are that on 02nd December 2022 at about 1700HRS at Embu Police Station within Embu County, the appellant was found in possession of a mobile phone make Itel, the property of Michael Muriithi Njagi.
  6. The appellant pleaded not guilty and the matter proceeded to full hearing.
  7. PW1 was Catherine Wanyaga Njiru who stated that she sells wines and spirits and she lives in her workplace. She stated that on the night of the incident, she was asleep when she heard a loud bang on the door and 6 people entered the bar and started taking the alcohol away. That they asked her for money and one of them made her to sit on the floor. That they asked for the shop owner and she gave them the name as Kinyua and he lives in Runyenjes. That they stole her 2 phones and a customer’s phone together with different types of alcohol and transferred them into a motor vehicle.
  8. She stated that one of the robbers stepped on her neck and kicked her on the chest and abdomen. That the robbers were armed with pangas and a whip and they were wearing balaclava masks such that only their eyes could be seen. That after they left, he went to a neighbor, one Munene and used his phone to call her employer, who called the police. The following day, she went to Runyenjes Police Station and DCIO to report the matter then she recorded her statement and gave details of the lost phones. It was her testimony that she was later called to the police station for an identification parade where there were about 10 men. That she identified the accused person using the pink stripped shirt he was wearing the previous night. That she was later treated at Runyenjes level 4 Hospital.
  9. On cross-examination, she stated that from the stock records, the stolen alcohol was worth Kshs.150,000/=. That it is the appellant who entered the shop first and that he was wearing the pink stripped shirt by which he identified him at the identification parade. That she saw the people because she had switched on the lights when she heard the loud bang. That she was able to identify her phone because it had her name on it.
  10. PW2 was Michael Muriithi who stated that he had taken his phone to charge at PW1’s shop and he was to pick it the following day. That the following day, he found PW1 outside the shop and she told him that her phones and his were stolen. That after about 2 weeks, the DCI called him to go to the station and identify a phone that had been recovered and he found that it was his lost phone. On cross-examination, he stated that his phone was a gift from his mother who said that she bought it at Runyenjes but did not have a receipt for it. That he identified it because it had a cracked screen.
  11. PW3 was Samuel Murithi Ngare who stated that he examined PW1 who had been assaulted. He stated that the injuries were 1 month and 1 week old and were caused by a blunt object. On cross-examination, he stated that he couldn’t recall if he treated PW1 but he is the one who filled the P3 form.
  12. PW4 was IP Peter Kimani of Runyenjes Police Station who conducted the identification parade. He stated that the appellant declined to have anyone present during the parade and he stood between positions 7 and 9. That PW1 identified him by touching his shoulder. When asked if he was satisfied with the identification parade, the appellant stated that the complainant’s eyes were fixated on him for the whole period of the parade. He stated that he signed the identification parade form which he produced as evidence. On cross-examination, he stated that the appellant was brought out of the cells once the parade was ready. He denied having shared the appellant’s description with the complainant before the parade. He stated that the date on the stamp on the form is an error.
  13. PW5 was PC Christopher Karumba of DCI Embu East who stated that he was in the company of 4 colleagues when they saw a motor vehicle registration number KCG 723P that had been reportedly involved in a series of robberies. That they stopped the motor vehicle along Embu/Meru highway at Embu Town and it was being driven by the appellant. That upon carrying out a search, they found a metal cutter, a panga, a knife with a wooden handle, a maasai sword with red sheath, assorted alcoholic drinks and 4 mobile phones being one Huawei, 2 Itel and 1 Oking.
  14. He stated that the owner of the motor vehicle was found and he showed them the logbook and the car hire agreement, stating that the appellant had hired the motor vehicle from 30th November to 03rd December 2022. It was his evidence that upon forensic analysis, the owners of the phones were located, some of whom had reported at Runyenjes police station. That he prepared an inventory of the exhibits and took photographs. On cross-examination, he stated that the motor vehicle had a tracking device and he requested for the tracking report.
  15. PW6 was George Kimani Njoroge who testified that he hired motor vehicle registration number KCG 723P out to the appellant who was referred by one Dennis. That they signed a car hire agreement and the appellant gave him copies of his driving licence and national ID. The period for hire was 3 days and on 02nd December, he was informed that the car was at the DCI offices and he went and was told that the vehicle had been involved in criminal activities. On cross-examination, he stated that the motor vehicle owner said that the appellant had hired the motor vehicle to ferry miraa.
  16. PW7 was PC Leonard Ocholla of DCI Embu West who was also with PW6. He rehashed the testimony of PW5 on how the appellant was arrested and what was found in his car. On cross-examination, he stated that they managed to locate the motor vehicle through intelligence. That the officers present witnessed the search on the motor vehicle which was conducted at the police station since a crowd had started gathering after the appellant was intercepted. That PW5 is the one who drove the appellant’s motor vehicle to the station. That the appellant willingly signed the inventory and he was not coerced.
  17. PW8, PC Edimond Shamalla was the investigating officer. He stated that he visited the scene where PW1 reported that her 2 phones and other goods had been stolen and the following day, she recorded a statement. That later on, some stolen items were recovered and PW1 and PW2 managed to identify their phones from among them. That the identification parade was done by PW4 and PW1 partially identified him. He produced the trip report for the motor vehicle from the tracking company. On cross-examination, he stated that PW1 could not identify the motor vehicle used by the robbers. That he did not dust the mobile phones for fingerprints.
  18. PW9 was CI Sarah Bokosh who produced photographic evidence together with the corresponding certificate on behalf of her ailing colleague.
  19. At the close of the prosecution’s case, the court found that the appellant had a case to answer and he was placed on his defense.
  20. DW1 was the appellant. He testified that on the night of the incident, he was packing miraa in his hired motor vehicle until 11PM and afterwards, he met his business partner at Kamuketha hotel in Embu. That afterwards, he dropped 2 of his friends towards Runyenjes and Ugweri direction and he returned to Embu. That the following day, he met with the owner of the motor vehicle at a garage since the vehicle had a mechanical problem. That on the way from the garage, he was intercepted by another vehicle and he was arrested and taken to the police station. On cross-examination, he stated that he dropped his friend Murimi in Runyenjes at 1:20AM and he dropped his friend Grace near Ugweri at 1:40AM. That he went to Gichiche at around 3AM but he did not stop there. That he was forced to sign the inventory
  21. The trial court considered the evidence and found the appellant guilty of the 1st and 3rd counts but he was acquitted in Count 2.   He was sentenced to death in count 1, and 2years imprisonment in Count 3. The court noted that the appellant was already serving a death sentence having been convicted in another case and so it held the sentence herein in abeyance.
  22. The court directed that the parties in this appeal file their written submissions but only the respondent complied.
  23. In its submissions, the respondent placed reliance on section 295 and 296 of the Penal Code and the cases of Oluoch v. Republic (1985) eKLR and Mohamed Ali v. Republic (2013) eKLR and stated that the elements of the offence were proved beyond reasonable doubt. That the appellant was positively identified as the perpetrator because the complainant spent a significant amount of time with him that night. It also relied on the doctrine of recent possession and the case of Isaac Nanga Kahiga alias Peter Kahiga v. Republic (Criminal Appeal No. 272 of 2005) UR.
  24. The respondent relied on the provisions of section 306 of the Penal Code and the case of MTG v. Republic (2022) KEHC 189 KLR and submitted that conviction should not be disturbed. It relied on the case of Bernard Gacheru v. Republic (2002) eKLR and stated that the sentence meted out by the trial court is based on correct principles of the law and the appellant has not given this court reasons to review it.
  25. From the grounds of appeal and the submissions made, in my view, the issues for determination are as follows;
    1. Whether the offences were proved beyond reasonable doubt;
    2. Whether the sentences meted out to the appellant should be reviewed; and
    3. Whether the appellant was denied the right to defend himself according to section 211 of the Criminal Procedure Code and Article 50 of the Constitution.
  26. It is the role of this appellate court to re-examine the evidence to reach its finding. This was stated in the case of Kiilu & Another vs. Republic [2005]1 KLR 174, where the Court of Appeal held:

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence.  The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”

  1. On the issue of whether the offence was proved beyond reasonable doubt, I wish to discuss the elements of the crime itself as provided for under section 296(2) of the Penal Code. It provides:

“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.”

  1. In the case of Charles Mwai Kimani v Republic [2022] eKLR the court cited the case of Jeremiah Oloo Odira v Republic [2018] eKLR where the Learned Judge encapsulated the aforementioned sections and elaborated on the offence of robbery with violence as follows:

“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. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.

On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -

i.      The offender is armed with any dangerous or offensive weapon or instrument, or

ii.     The offender is in the company of one or more other person or persons, or

iii.    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”

  1. If these elements are proved to the required standard, the appellant will be found culpable, given the wording of the relevant provision. This was the position of the court in the case of Republic v. Dima Denge & Others (2013) eKLR where the court stated:

“The elements of the offence under Section 296 (2) are, however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction. This was considered at length by this Court in Johana Ndungu vs. Republic Criminal Appeal No. 116 of 1995 (unreported;)

“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or properly at or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in section 296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section.””

  1. PW1 testified that on the night of the incident, while she was inside her shop, she heard a loud bang and 6 men entered. The men took her 2 phones and PW2’s phone which was also in her custody. After that, the men started taking away an assortment of alcohol to a car that was waiting outside. She stated that the men kicked her on the chest and abdomen and one of them stepped on her neck and she was treated at Runyenjes Level 4 Hospital. She identified the appellant through an identification parade conducted by PW4. She stated that the 6 men were wearing balaclava masks but on cross-examination, she stated that they were wearing Marvin hats and their faces were not concealed.
  2. PW5, PW7 and PW8 all stated that the stolen good detailed in the charge sheet were recovered in the impounded motor vehicle that was being driven by the appellant. It was reported that the motor vehicle had been used to aid other criminal activities in Kirinyaga and Tharaka Nithi counties and the appellant had been convicted of robbery with violence in another case with somewhat similar facts. 
  3. From the prosecution evidence, the elements of the offence of robbery with violence have been satisfied. The trial court found as much and sentenced the appellant to suffer death.
  4. With regards to the 3rd count which the appellant was convicted of, PW1 testified that she heard a loud bang on the door and the 6 men made their way into the shop. Sections 286(1)  and 275 of the Penal Code provide:

“268. (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property

275. Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”

  1. The testimony of PW1 coupled with that of PW5, PW7 and PW8 prove that the appellant alongside others, stole the liquor and other goods from the complainant’s shop. For this offence, the appellant was sentenced to 2-years imprisonment.
  2. During sentencing, the trial court noted that the appellant had already been convicted of another offence of robbery with violence and had been sentenced to death. The trial magistrate proceeded to pronounce the sentences for the 1st and 3rd counts but held them in abeyance. This finding is in line with Clause 2.2.9 of the Sentencing Policy Guidelines 2023 which states:

“Where an accused person is convicted of several counts of capital offences each attracting the death sentence, the court shall pass the death sentence on each count but direct that the second or subsequent sentences be held in abeyance.”

  1. The death sentence for the 1st count is a legal sentence and may be meted out to an accused person once convicted if the circumstances of the case demand its application. This sentence is intended to apply as is once a person is found guilty of the offence. Clause 2.2.1 of the Sentencing guidelines 2023 still recognises the death penalty as a legal sentence in Kenya. The Court of Appeal in the case of Joseph Njuguna Mwaura & 2 others v Republic (2013) eKLR stated:

“A look at all the provisions of the law that impose the death sentence shows that these are couched in mandatory terms, using the word ‘shall’. It is not for the Judiciary to usurp the mandate of Parliament and outlaw a sentence that has been put in place by Kenyans, or purport to impose another sentence that has not been provided in law. It has no jurisdiction to do so…In our view, to say that there are other alternative sentences to the mandatory imposition or application of the death sentence is a pedantic and preposterous interpretation of the spirit and the letter of the Penal Code…”

Given this reasoning, there is no basis for reviewing this sentence in any way, given that it is being held in abeyance, in as much as the appellant claimed that it is inhumane in nature. In the end, I find that the appeal lack merit and it is hereby dismissed.

  1. I have also perused the trial court proceedings and do not find an instance where the trial magistrate caused infringement of the appellant’s constitutional rights as an accused person. Moreover, the appellant did not submit on this ground and therefore, this court will let the matter to rest.
  2. In the end, I do find that the appeal herein lacks merit and it is hereby dismissed.
  3. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    BERNARD FUNDI ALBERT VS The Republic BERNARD FUNDI ALBERT VS The Republic