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JudgmentBERNARD FUNDI ALBERT VS The Republic17 min read

BERNARD FUNDI ALBERT VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. S.Ouko (SRM) in the Magistrate’s Court at Runyenjes Criminal Case No. E021 of 2023 delivered on 01st November 2023)


  1. The appellant filed the petition of appeal dated 14th November 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 Kigumo Shopping Center within Embu East subcounty within Embu County, the appellant, jointly with others not before court, robbed Elizabeth Katumbi of 2 mobile phones, 5 keg cylinders, one television set and assorted liquor all valued at Kshs.116,450/= and immediately before and after such robbery, beat the said Elizabeth Katumbi.
  3. The 2nd count was handling stolen goods contrary to section 322(1) as read together with 322(2) of the Penal Code. The particulars are that on 02nd December 2022 at Kigumo Shopping Center within Embu East subcounty within Embu County, the appellant was found in possession of a mobile phone of make Huawei, the property of Elizabeth Katumbi.
  4. The 3rd 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 Kigumo Shopping Center within Embu East subcounty within Embu County, the appellant, jointly with others not before court, broke and entered into ‘Three In One bar’ and stole assorted liquor valued at Kshs.72,640/= the property of Florence Kainda Nabea.
  5. The appellant pleaded not guilty and the matter proceeded to full hearing.
  6. PW1 was Elizabeth Mutwiri who stated that she was in house sleeping behind her bar when she heard a distress call at about 3AM. That when she opened the door, she was accosted by 4 men among whom was the appellant who grabbed her throat. That they led her back to the house where they took her keys and escorted her out to the bar. That they opened the bar and began taking her alcohol stock, keg crates and a television set and loaded them into a vehicle. They also took her 2 phones, one Huawei and one Itel make. She stated that she clearly saw the appellant because the lights in the bar were on but she couldn’t identify the other people because they had masks on.
  7. That once they were done, they went to the next bar which belonged to one Florence Mwende and they stole her stock and other things. That after they had driven away, she called Florence Mwende and they reported the matter to the police who visited the scene. She stated that she identified the appellant through an identification parade and she also identified her phone when the police showed it to her. She produced receipts of ownership of her phones, TV and stock-taking records of the alcohol that was taken.
  8. On cross-examination, she stated that the appellant forced her to identify the key that is to be used to open the bar and the counter. That she had enough time to identify the appellant since he was the one holding her all that time and his skin was distinctly lighter than that of the other 3 men. That they made her to sit outside as they raided the next bar. That there were 2 vehicles at the scene, a black one and a white one but she did not see any number plates and couldn’t identify the vehicles.
  9. PW2 was Florence Kainda who stated that she is the owner of “three in one bar” at Kigumo. She stated that on the day of the incident at around 4:30AM, she heard a knock on her door and when she opened, she found that it was PW1 who informed her that their establishments had been broken into and some stock stolen. That she went and confirmed that the padlock had been broken and the alcohol had been stolen. That she had taken stock that night and so they reported the matter to the police. She didn’t know who had broken into her bar.
  10. PW3 was George Kimani Njoroge of “Gorge’s car hire and rental services.” He stated that the appellant hired out motor vehicle KCG 723P Toyota Axio on 30th November 2022 at 7.00 p.m and was to return it on 03rd December 2022. That the appellant told him that he intended to use the car to carry Miraa.That he gave a copy of his ID and driving license. He produced a copy of the car hire agreement they signed before the appellant took the car. On cross-examination, he stated that he did not see anything illegal about carrying miraa in the motor vehicle but he was shown photos of the items the appellant was carrying after the incident when the car was seized in Embu town.
  11. PW4 was Inspector Sarah Bokosh who produced the crime scene investigation report authored by Cpl. David Kipchumba who was away on leave. She produced photographs taken at the scene together with the certificate of photographic evidence. On cross-examination, she stated that she was not present when the photographs were taken but they showed the items that were recovered from the car.
  12. PW5 was P.C. Christopher Karuba of DCI Embu West. He testified that through intelligence, he tracked and followed motor vehicle registration number KCG 723B which had been involved in a series of robberies in Embu and Kirinyaga counties. That he stopped the motor vehicle and it was being driven by the appellant who was alone in the vehicle. He stated that he conducted a quick search in the vehicle and he found a metal cutter, 1 panga, 1 knife with a wooden handle, 1 Maasai sword, 4 damaged mobile phones including Huawei and Itel phones, assorted alcoholic drinks and another Huawei phone with 2 simcards.
  13. That he escorted the appellant to Embu Police station, took photographs of the items recovered from the vehicle and then traced the ownership of the vehicle to PW3 who produced the car’s logbook and confirmed that he had hired the car out to the appellant. He availed the car hire agreement. The phone was identified by Elizabeth Kathambi as her lost Huawei phone. On cross-examination, he stated that the motor vehicle in question had been implicated in various robberies and earlier reports had been made. That he was found with the complainant’s phone in the car and that the investigations were conducted with the help of an informer whom he declined to name.
  14. PW6 was Inspector Stephen Mbithi the deputy OCS Runyenjes police station, who conducted the identification parade. He stated that before the parade, the appellant waived his right to have a friend or advocate present. That the parade had 12 participants whom he named, including the appellant who stood between position 4 and 6. That the complainant started from left to right and she identified the appellant by touching him. That the participants in the parade were of similar height and features and they did not include participants with distinct markings or disabilities. On cross-examination, he stated that there is an error on the date stamp but he wrote the correct date by hand. That the appellant was taken from the holding cells directly to the identification parade room and afterwards he signed the form by himself.
  15. PW7 was CPL Edimon Shamallah of Runyenjes police station, the investigating officer. He stated that he visited the 2 bars that had been broken into and he interviewed the owners and documented the items that had been stolen. That the robberies took place on the same night and Elizabeth Katumbi said that there were 5 people who attacked her but she could properly identify one of them. That the suspect was arrested at Embu in a hired motor vehicle in which they recovered some of the stolen goods.
  16. He produced his investigation report showing the movement of the motor vehicle, an inventory of the stolen goods and other documents relating to the case. On cross-examination, he stated that he was not present when the appellant was arrested and that the complainant did not identify the vehicle used during the robbery. That he did not conduct the identification parade since his rank does not allow him to do it but he interrogated the suspect as the investigating officer. That Elizabeth Katumbi witnessed the break-in in both establishments and she told the police that the appellant strangled her and stepped on her fingers.
  17. PW8 was Samuel Murimi Ngari of Runyenjes Hospital who stated that he examined Elizabeth Katumbi who had been assaulted. He stated that she had neck pain and tenderness and she was treated with analgesics.
  18. PW9 was P.C. Leonard Ocholla of DCI Embu West who stated that on 02nd December 2022, he was in the company of 4 colleagues and they were informed of the location of a motor vehicle that was suspected of being involved in several robberies. They chased the vehicle and intercepted it at Majengo in Embu before arresting the driver and recovering stolen items from it.
  19. That the appellant, who was driving the said motor vehicle registration number KCG 723P was placed in custody and the recovered items were photographed and forensically examined, one phone was found to belong to Elizabeth Katumbi. On cross-examination, he stated that the appellant was found with the motor vehicle which contained the stolen goods including the complainant’s phone which was identified using the IMEI number. That no one forced him to sign any document at the station and that the other lost items were found to belong to other complainants in other cases before different courts.
  20. 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. However, he stated that he wasn’t ready to proceed with his defense since he wanted a chance to file his submissions first. He stated that he did not feel safe and the court was biased and he sought for an adjournment. The court gave a ruling in the matter stating that the appellant’s reasons for refusing to proceed with the defense case were not plausible and that he had not made an application for the magistrate to recuse herself.
  21. It found that there was no basis for staying the hearing. The appellant stood his ground and insisted that his rights under Article 50 of the constitution had been infringed. The court took a 30-minute break and when it returned, the appellant stated that he was still not ready to defend himself that day. The court noted that the accused’s conduct has made it impossible to proceed with the trial and marked the defense case as closed, urging the appellant to file his submissions. The matter was scheduled for judgment.
  22. In its judgment, the trial court found the appellant guilty of the 1st and 3rd counts and sentenced him to death on the 1st count and 1 year imprisonment on the 3rd count.
  23. In this appeal, the court directed the parties to file their written submissions but only the respondent complied.
  24. 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.
  25. 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. That the appellant’s rights under article 50 of the Constitution were not infringed because he was given a chance to defend himself but he refused to do so. 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.
  26. 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.
  27. 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, she heard a knock on her door and when she opened, the appellant grabbed her throat and went into her house where he took the keys to her bar. That he was with 3 other people and he forced her to open the door to the bar where they started removing alcohol and a television set. That they also took her 2 phones which were recovered from the motor vehicle that was being driven by the appellant. She testified that they did not seem to be in a hurry and they were loading their loot into 2 motor vehicles whose registration numbers she did not see. That the appellant threatened to shoot her if she resisted or made any noise.
  2. The evidence shows that the appellant intended to steal, and he did, and before and after he did so, he threatened the life of PW1. PW8 testified that PW1 was treated at Runyenjes hospital after being assaulted. He stated that she had tenderness and pain on her neck, thus corroborating the evidence of PW1. PW1 stated that the appellant was in the company of 3 other people who were wearing masks and that the appellant wasn’t wearing a mask.
  3. She identified him through an identification parade conducted by PW6 and she stated that she had spent ample time with the appellant to recognize him in the parade. When the appellant was arrested by police, PW5 testified that the motor vehicle he was driving had the stolen phones, a knife, a panga, a metal cutter and 1 Maasai sword. These details make up the elements of the offence of robbery with violence, for which the appellant was sentenced.
  4. PW1 testified that once the appellant and his accomplices were done looting her bar, they forced her to sit outside and she watched as they broke into and stole from the next bar belonging to PW2, Florence Mwende. PW2 stated that PW1 went to her house to inform her of the break-in to their establishments and they reported the matter to the police. She stated that she had taken her inventory the previous night and she confirmed that her stock had been stolen.
  5. Section 306(a) of the Penal Code provides:

“Any person who -

(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein”

  1. PW2’s establishment was for selling liquor, that is, a bar. The fact that the appellant and his accomplices were seen by PW1 breaking the padlock and entering the establishment, is enough to prove that the offence was committed. For this offence, the appellant was sentenced to 1-year imprisonment.
  2. 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 so. 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, even though the appellant claimed that it is inhumane in nature. The trial magistrate already exercised her discretion regarding the 2nd count and the sentence is found to be lenient.

  1. The appellant did not offer any evidence in defence. As stated hereinbefore, when the matter was scheduled for defense hearing, the appellant declined to offer defense, telling the court that he was not ready to proceed and wished to file his submissions. The trial court did pronounce itself severally on the adjournment through a ruling. Eventually, the trial magistrate closed the defense case since the appellant had not given sufficient reasons to have the defense hearing adjourned.
  2. According to the trial court proceedings, the magistrate made the appellant aware of his options for defense hearing as stipulated under section 211 of the Criminal Procedure Code. The appellant stated that he intended to give sworn testimony and he did not intend to call any witnesses. He requested for the proceedings and when the matter came up for defense hearing, he declined to proceed. From these proceedings, it is my view, that the trial magistrate was meticulous to make the appellant aware of his rights and options under 211 of the Criminal Procedure Code and the appellant understood. 
  3. By the time the trial court decided to close the defense case, the appellant had failed to demonstrate why he should be granted an adjournment. Therefore, in all fairness, he was accorded a fair chance to defend himself as provided under Article 50 of the Constitution. In my view, the trial magistrate acted in a manner that is just in the circumstances.
  4. In the end, I find that the appeal lacks merit and it is hereby dismissed.
  5. 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