REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL APPEAL NO E030 OF 2025
CALLY OMIDO……………………………………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………………………..RESPONDENT
(Being an Appeal from the Judgment of Hon J. A. Agonda (SPM) delivered at Vihiga in Senior Principal Magistrate’s Court in Criminal Case No E788 of 2023 on 3rd December 2025)
Coram: Before Justice R. Nyakundi
Mr. Leina for the State
JUDGMENT
1. The Appellant herein was charged jointly with three (3) others not before this court with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code Cap 63 Laws of Kenya on count I. The particulars of the offence were that on the night of 10th October, 2023 at Masigulu Village, Chango Sub-Location Central Maragoli, Vihiga County jointly with others not before the court while armed with dangerous weapons namely pangas robbed Annaciata Barusi Kadima Kshs 17,000/= and immediately after the time of such robbery injured one Wilberforce Kedogo.
2. He was also charged of the offense of grievous harm contrary to Section 234 of the Penal Code Cap 63 Laws of Kenya on count II. The particulars were that on 10th October, 2023 at Masigulu Village, Chango Sub-Location Central Maragoli, Vihiga County jointly with others not before the court while armed with dangerous weapons unlawfully did grievous harm to Atonya Wilberforce.
3. The Appellant was tried and convicted of the two (2) offences and was sentenced to twenty-five (25) years imprisonment.
4. Being dissatisfied with the said Judgement delivered on 3rd December 2025, he lodged the Appeal herein. The Appellant filed the Petition of Appeal dated 22nd December 2025 based on 4 grounds as follows: -
a. That the learned Magistrate erred in both law and fact by failing to establish that the prosecution did not prove its case beyond reasonable doubt.
b. That the trial Magistrate erred in law and in fact in conducting and arriving at a decision while relying on evidence that was full of contradictions and without analyzing the evidence on record.
c. That the trial Magistrate erred in law and fact in failing to appreciate that the prosecution case lacked corroborative evidence to support its case.
d. That I seek leave before this Honourable Court to erect more grounds after receiving the certified copy of the trial proceedings.
5. The Appellant also filed Amended Grounds of Appeal dated 17th March 2026 which can be summarized as follows: -
a. That the trial court erred in law and in fact in not making a finding that the Appellant was not accorded his right to cross-examine the 1st Accused.
b. That the trial court erred in law and facts by failing to comply with Section 214(i)(ii) of the Criminal Procedure Code after amending the charge sheet.
c. That the trial court erred in law and in facts in relying on mistaken, inconclusive and flawed evidence of identification.
6. The Appeal was canvassed by way of written submissions.
Appellants Written Submissions.
7. The Appellant filed his written submissions dated 19th March 2026. The Appellant reproduced the evidenced of PW 1 and PW 2 and submitted that the time was too short for identification despite the presence of security light and outside bulb, PW 1 and PW 2 could not identify positively the attackers who had a panga and an iron bar. Hence the time under observation was short for positive identification. He blamed PW 1 for having reported at first that she could not identify her attackers that material night. In this regard, he placed reliance on the case of Kiarie Vs Republic.
8. He also faulted PW 1 and PW 2 for not describing his appearance to the authority on their first report. To buttress his point, he relied on the case of Maitanyi Vs Republic (1986) KLR 198 where it was held that if a witness receives a very strong impression of the features of the assailant, the witness will usually be able to give some description and if on the other hand the witness say that he or she could not identify or recognize the person, then a later identification or recognition must be suspect unless explained.
9. He argued that the identification was conducted without fairness as the parade officer did not inform him of his right to call a friend or solicitor to be present during the identification parade and that PW 1 and PW 2 did not give the description of their assailant nor report that they could identify them if they were made to see them in their first report. In this regard, he cited the cases of Nathan Kamau Mugwe Vs Republic Criminal Appeal No 63 of 2008 and Gabriel K. Njoroge Vs Republic (1982-88) 1 KAR 1134.
10. He argued that nothing belonging to the complainant was recovered from him and that he was arrested from his home and there was no evidence on record that he went on hiding after the incident. He added that the 1st Accused person at the trial court (his co-accused) was a psychiatric hence his oral evidence and confession that led to his arrest was not reliable. He argued that he was not given a chance to cross-examine the said co-accused to test the veracity of his confession. In this regard, he relied on the case of Kiarie & Another Vs Republic (1986) KLR 281.
11. He further argued that the trial court erred in not complying with Section 214(i), (ii) of the Criminal Procedure Code after amendment of the charge. He placed reliance on the cases of Yongo Vs Republic (1983) KLR 319 and Harrison Murungu Njuguna vs Republic Criminal Appeal No 90 of 2004. He pointed out that in his case, the charge sheet was read to the appellant a fresh and plea of not guilty taken but the trial court failed to inform him of his right given to him by the law to recall witnesses to give evidence a fresh on the amended charges or to cross-examine the witnesses further, hence not curable under Section 382 of Criminal Procedure Code. He argued that therefore the proceedings were fatally defective.
Prosecution’s Written Submissions.
12. The Prosecution/Respondent filed its written submissions dated 22nd April 2026 through the Learned Prosecution Counsel Mr. Leina Davies. The Respondent placed reliance on the cases of Johanna Ndung’u vs Republic Criminal Appeal No 116 of 2005 (unreported) and Oluoch vs Republic [1985] KLR where it was held that robbery was committed where the offender was armed with any dangerous and offensive weapon or instrument or the offender was in company with one or more person or persons or at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.
13. The Learned Prosecution Counsel asserted that it was also crucial in addition to there being one of the set-out ingredient of robbery with violence was the need to positively identify the assailants in question as held in the case of Suleiman Kamau Nyambura Vs Republic Criminal Appeal No 5 of 2013.
14. He also placed reliance on the case of Wahungu Vs Republic[1989] KLR 424 where it was held that evidence of visual identification in criminal cases could bring about miscarriage of justice and it was of vital importance that such evidence was examined carefully to minimize this danger and the case of R Vs Turnbull [1977] QB 224 where it was held that if the quality of the identification evidence was good and remained good at the close of the accused’s case, the danger of mistaken identification was lessened, but that the poorer the quality the greater the danger.
15. The Learned Prosecution Counsel was emphatic that the prosecution proved the case beyond reasonable doubt. It urged the court to dismiss the appeal herein.
Analysis and Determination
16. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
17. This was aptly stated in the case of Selle & Another Vs Associated Motor Boat Co Ltd &Others [1968] EA 123 where the court therein held that: -
“The appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect.
18. The Supreme Court of India also explained the duty of a first appellate court in K. Anbazhagan Vs State of Karnataka and Others Criminal Appeal No. 637 of 2015 as follows: -
“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
19. Having looked at the Appellant’s Petition of Appeal, his Written Submissions and those of the Respondent, there are two (2) issues for determination as follows: -
a. Whether or not the Prosecution proved its case beyond reasonable doubt; and
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
Whether or not the Prosecution proved its case beyond reasonable doubt?
20. The issue in this case is whether the prosecution proved its case to the required standards. Most of quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington Vs DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
21. PW1 - Wilberforce Kedogo Atonya, testified that on the material day of 10th October 2023 at 5. 00a.m, he was at his house at Mazungulu with his family who were still asleep when he heard noise from the other room. Her sister was screaming at the shop asking for help she said, “please do not cut her, she is a small child, if its money let me give you”. He said that he left his house and went to her sister’s house using the front door few meters away and tried peeping through the window.
22. It was his further testimony that there were people standing outside and there was street light and bulb light was on. He stated that he then saw three (3) people and when he opened the door they panicked and they wanted to escape. They were coming towards him and he managed to hold one and one man and the other came wielding pangas. He said that they all came cutting him on the head (5) times and hitting him with an iron rod. He concluded that he had 22 cuts on his body.
23. He stated that as they were attacking him, his wife and children continued screaming for help. The attack took ten (10) minutes and that the neighbours came and he lost consciousness. He added that he was bleeding on the head, chest, shoulders and the whole body was oozing blood. He was rushed to hospital in Mbale and was treated and discharged.
24. He further stated that the attackers were four (4) and did not have masks. He stated that he did not know the attackers before the incident but he could identify them after the incident. He added that he was able to identify the Appellant herein together with his co-accused (s) at the identification parade. He pointed out that they had found a small phone button at the scene which was on and they did not handle it. The Police took the phone which was at the scene when they arrived.
25. PW2 - Annaciata Barasi Radima, testified that on the material day, she had opened the shop at 5.00 a.m as usual and was lighting her jiko outside. When she got back to the house she met five (5) men entering into her house that was attached to the shop. The men told her that they were police officers and that they had been told that she sells cigarettes. She stated that they were in plain clothes and did not have face masks
26. Three of the men pushed her into the shop asking if she was selling cigarretes, one of them tried opening the store and placed a padlock, three (3) of the men pulled their shirts and removed pangas and metal rods. They were all armed. They asked for money as they ransacked her bags and shelves removing shop items and bags contents. She said that she told them that she had money and gave them. They took Kshs 17,000/= from her bag and airtime and goods from the shop. When she tried screaming one of them hit her with a panga on the head.
27. They went to another room and wanted to kill a child but she told them not to kill him. They went back to the shop and asked for money and PW 1 came to the veranda. She said that she was held by two of them and one had left to attack her brother. The two then released her and started attacking her brother. She screamed that robbers were killing her brother and a boda boda rider stopped and came to the scene and the robber escaped.
28. She corroborated the evidence of PW 1 that he was cut on the head, hands and back and was severely injured. She also stated that they found the phone at the scene and that she did not know the attackers before the incident but identified them at the identification parade.
29. PW3 - Emily Mugasia testified that she was a neighbor and a village elder. She confirmed that she went to the shop that morning and found PW 1 injured and PW 2 told her that they had been attacked and the shop robbed.
30. PW4 - NO 82260 Corporal Summy Sanchu, the investigating officer’s evidence corroborated that of PW 1, PW 2 and PW 3. He added that when they visited the scene they found the place had blood sprinkled all over and a phone IMEI No 351528042803325 Airtel Line 07844728074 that they used for their investigations. He added that they did a phone analysis that led them to one Bonface who took them to the Accused persons. When they ransacked his house, they found axe, panga and several phones, they took the items to the police station and arraigned the accused persons. He said that the panga was used to cut PW 1 and the metal rod was used to break doors. He produced the panga and the metal rod as exhibits in court.
31. PW5 - Boaz Alion, Clinical Officer, confirmed having treated PW 1. He noted that he had several fractures on front, side and back, outer scalp had cuts and the head had eight (8) cuts, right ear cut and in total had 22 cuts and stitched. He produced a P3 form as exhibit in this case.
Identification
32. The evidence was cogent on identification parade. All caution was taken to ensure that the same was free from error. In this case, where evidence is that of persons known to the parties, a parade is not useful. The court has to consider the weight to be attached to the said identification evidence. The Court of Appeal dealt with issue of whether the identification parade was properly conducted in the case of David Mwita Wanja & 2 others –vs- Republic - Criminal Appeal No. 117 of 2005:-
“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 myriad of other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia Vs 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.”
33. The courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that: -
“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.”
34. Notably, PW 1 and PW 2 confirmed that although they did not know their attackers before the incident, they could identify them after the incident. PW 1 noted that there was street light and bulb light thus sufficient lighting conditions. PW 1 and PW 2 also noted that the attackers were not in face masks. PW 2 confirmed that she kept moving with them from one room to another and PW 1 noted that the incident took about ten (10) minutes. That was sufficient time for PW 1 and PW 2 not to have been mistaken about their faces.
35. In addition, PW 1 and PW 2 were able to identify the Appellant at the identification parade. It was therefore clear from the evidence that was adduced by the Prosecution that PW 1 and PW 2 positively identified the Appellant as having been one of the attackers on the material night. His argument that the Prosecution failed in conducting an identification parade therefore fell on the way side.
36. The fact that a phone was recovered at the scene and the same was used to trace the attackers squarely placed the Appellant herein as one of the perpetrators on those material nights.
37. The offence of robbery with violence is contained in Sections 295 and 296(2) of the Penal Code as follows: -
“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
296(2). If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
38. In Jeremiah Oloo Odira Vs Republic [2018] eKLR 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: -
a. The offender is armed with any dangerous or offensive weapon or instrument, or
b. The offender is in the company of one or more other person or persons, or
c. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person” (See Olouch Vs Republic (1985) KLR)
39. PW1 and PW2 confirmed having seen their attackers with pangas and metal rod. It was evident from the evidence of both PW1 and PW2 that the Appellant was in the company of others during the attacks. There was robbery. Indeed, PW1 testified that the Appellant and his Co-Accused persons robbed her of Kshs 17,000/=, airtime and goods from the shop. It was clear from the aforesaid evidence that the Appellant was in the company of his Co-Accused persons. They were armed with a sharp object and that during, immediately before and after the offence they wounded PW 1. They slapped PW 2 with a Panga on the head and robbed them of the items from the shop.
40. The chain of events was unbroken. The Trial Court thus proceeded correctly when it found that all the ingredients of proving the offence of robbery with violence had been satisfied and hence convicted him accordingly.
41. Going further, Section 214 (1)(i) of Criminal Procedure Code stipulates that: -
“Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that where a charge is so altered, the court shall thereupon
call upon the accused person to plead to the altered charge”
42. Notably, a perusal of the proceedings herein indicate that the Charge Sheet was amended on 1st September 2025 and the Appellant was subjected to taking of plea afresh and a plea of not guilty entered. The Trial Court did not indicate whether it notified the Appellant his right to recall witnesses.
43. Be that as it may, the amendment was done to delete the name of the 1st Accused person who had been discharged under Section 87A of the Criminal Procedure Code to assist him seek treatment. To the mind of this court, the amendment did not affect the flow of evidence in any way to warrant the recall of witnesses, thus the proceedings were not defective in the circumstances. In the premises, Grounds of Appeal No 1, 2, 3 and 4 of the Petition of Appeal dated 22nd December 2025 as amended on 17th March 2026 are not merited and the same be and are hereby dismissed.
Whether the Sentence is merited?
44. The Appellant did not raise any ground of appeal on this issue but submitted on the same. The Respondent did not submit on the issue of sentencing. This court found it prudent to determine the issue for completeness of record.
45. Notably, the Appellant was found guilty of the offence of robbery with violence. Section 295 of the Penal Code states that: -
“Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”
46. Further, Section 296 (1) and (2) of the Penal Code provides as follows: -
1. Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
2. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
47. The Trial Court sentenced the Appellant to twenty-five (25) years imprisonment. In the mind of this court, the Trial Court was lenient as it had the option of sentencing him to death. In view of the atrocity that was meted on PW 1 and PW 2 herein, this court finds that this was one of the instances that the sentence ought to be higher than what was meted upon the Appellant. However, in view of this court’s discretion on sentencing, the sentence of twenty-five (25) years imprisonment remains undisturbed.
48. I have considered The Sentencing Policy Guidelines, 2023 and its application which is intended to promote transparency, consistency and fairness in sentencing. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors and the objects of punishments. Therefore, in sentencing, the gravity of the offence and the consequences of the offence on the victim are relevant factors. Section 333(2) of the Criminal Procedure Code provides: -
“Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”
49. It is clear from the above provision that the law requires courts to take into account the period the convict spent in custody. According to The Judiciary Sentencing Policy Guidelines: -
“The provision to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
50. The requirement to comply with section 333(2) Criminal Procedure Code is mandatory in computation of the sentence to be served by the Convict upon establishing the nature of the sentence to be imposed. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed.
51. In view of the foregoing, the Appellant’s Petition of Appeal dated 22nd December 2025 and amended on 17th March 2026 be and is hereby dismissed. The Trial Court’s Judgment be and is hereby upheld. The sentence of 25 years imposed by the Trial Court shall run from the date of arrest being 4th November 2023.
52. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT VIHIGA THIS 26TH DAY OF MAY 2026
………………………………………….
R. NYAKUNDI
JUDGE
IN THE HIGH COURT AT VIHIGA
CRIMINAL APPEAL NO E030 OF 2025
CALLY OMIDO……………………………………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………………………..RESPONDENT
(Being an Appeal from the Judgment of Hon J. A. Agonda (SPM) delivered at Vihiga in Senior Principal Magistrate’s Court in Criminal Case No E788 of 2023 on 3rd December 2025)
Coram: Before Justice R. Nyakundi
Mr. Leina for the State
JUDGMENT
1. The Appellant herein was charged jointly with three (3) others not before this court with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code Cap 63 Laws of Kenya on count I. The particulars of the offence were that on the night of 10th October, 2023 at Masigulu Village, Chango Sub-Location Central Maragoli, Vihiga County jointly with others not before the court while armed with dangerous weapons namely pangas robbed Annaciata Barusi Kadima Kshs 17,000/= and immediately after the time of such robbery injured one Wilberforce Kedogo.
2. He was also charged of the offense of grievous harm contrary to Section 234 of the Penal Code Cap 63 Laws of Kenya on count II. The particulars were that on 10th October, 2023 at Masigulu Village, Chango Sub-Location Central Maragoli, Vihiga County jointly with others not before the court while armed with dangerous weapons unlawfully did grievous harm to Atonya Wilberforce.
3. The Appellant was tried and convicted of the two (2) offences and was sentenced to twenty-five (25) years imprisonment.
4. Being dissatisfied with the said Judgement delivered on 3rd December 2025, he lodged the Appeal herein. The Appellant filed the Petition of Appeal dated 22nd December 2025 based on 4 grounds as follows: -
a. That the learned Magistrate erred in both law and fact by failing to establish that the prosecution did not prove its case beyond reasonable doubt.
b. That the trial Magistrate erred in law and in fact in conducting and arriving at a decision while relying on evidence that was full of contradictions and without analyzing the evidence on record.
c. That the trial Magistrate erred in law and fact in failing to appreciate that the prosecution case lacked corroborative evidence to support its case.
d. That I seek leave before this Honourable Court to erect more grounds after receiving the certified copy of the trial proceedings.
5. The Appellant also filed Amended Grounds of Appeal dated 17th March 2026 which can be summarized as follows: -
a. That the trial court erred in law and in fact in not making a finding that the Appellant was not accorded his right to cross-examine the 1st Accused.
b. That the trial court erred in law and facts by failing to comply with Section 214(i)(ii) of the Criminal Procedure Code after amending the charge sheet.
c. That the trial court erred in law and in facts in relying on mistaken, inconclusive and flawed evidence of identification.
6. The Appeal was canvassed by way of written submissions.
Appellants Written Submissions.
7. The Appellant filed his written submissions dated 19th March 2026. The Appellant reproduced the evidenced of PW 1 and PW 2 and submitted that the time was too short for identification despite the presence of security light and outside bulb, PW 1 and PW 2 could not identify positively the attackers who had a panga and an iron bar. Hence the time under observation was short for positive identification. He blamed PW 1 for having reported at first that she could not identify her attackers that material night. In this regard, he placed reliance on the case of Kiarie Vs Republic.
8. He also faulted PW 1 and PW 2 for not describing his appearance to the authority on their first report. To buttress his point, he relied on the case of Maitanyi Vs Republic (1986) KLR 198 where it was held that if a witness receives a very strong impression of the features of the assailant, the witness will usually be able to give some description and if on the other hand the witness say that he or she could not identify or recognize the person, then a later identification or recognition must be suspect unless explained.
9. He argued that the identification was conducted without fairness as the parade officer did not inform him of his right to call a friend or solicitor to be present during the identification parade and that PW 1 and PW 2 did not give the description of their assailant nor report that they could identify them if they were made to see them in their first report. In this regard, he cited the cases of Nathan Kamau Mugwe Vs Republic Criminal Appeal No 63 of 2008 and Gabriel K. Njoroge Vs Republic (1982-88) 1 KAR 1134.
10. He argued that nothing belonging to the complainant was recovered from him and that he was arrested from his home and there was no evidence on record that he went on hiding after the incident. He added that the 1st Accused person at the trial court (his co-accused) was a psychiatric hence his oral evidence and confession that led to his arrest was not reliable. He argued that he was not given a chance to cross-examine the said co-accused to test the veracity of his confession. In this regard, he relied on the case of Kiarie & Another Vs Republic (1986) KLR 281.
11. He further argued that the trial court erred in not complying with Section 214(i), (ii) of the Criminal Procedure Code after amendment of the charge. He placed reliance on the cases of Yongo Vs Republic (1983) KLR 319 and Harrison Murungu Njuguna vs Republic Criminal Appeal No 90 of 2004. He pointed out that in his case, the charge sheet was read to the appellant a fresh and plea of not guilty taken but the trial court failed to inform him of his right given to him by the law to recall witnesses to give evidence a fresh on the amended charges or to cross-examine the witnesses further, hence not curable under Section 382 of Criminal Procedure Code. He argued that therefore the proceedings were fatally defective.
Prosecution’s Written Submissions.
12. The Prosecution/Respondent filed its written submissions dated 22nd April 2026 through the Learned Prosecution Counsel Mr. Leina Davies. The Respondent placed reliance on the cases of Johanna Ndung’u vs Republic Criminal Appeal No 116 of 2005 (unreported) and Oluoch vs Republic [1985] KLR where it was held that robbery was committed where the offender was armed with any dangerous and offensive weapon or instrument or the offender was in company with one or more person or persons or at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.
13. The Learned Prosecution Counsel asserted that it was also crucial in addition to there being one of the set-out ingredient of robbery with violence was the need to positively identify the assailants in question as held in the case of Suleiman Kamau Nyambura Vs Republic Criminal Appeal No 5 of 2013.
14. He also placed reliance on the case of Wahungu Vs Republic[1989] KLR 424 where it was held that evidence of visual identification in criminal cases could bring about miscarriage of justice and it was of vital importance that such evidence was examined carefully to minimize this danger and the case of R Vs Turnbull [1977] QB 224 where it was held that if the quality of the identification evidence was good and remained good at the close of the accused’s case, the danger of mistaken identification was lessened, but that the poorer the quality the greater the danger.
15. The Learned Prosecution Counsel was emphatic that the prosecution proved the case beyond reasonable doubt. It urged the court to dismiss the appeal herein.
Analysis and Determination
16. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
17. This was aptly stated in the case of Selle & Another Vs Associated Motor Boat Co Ltd &Others [1968] EA 123 where the court therein held that: -
“The appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect.
18. The Supreme Court of India also explained the duty of a first appellate court in K. Anbazhagan Vs State of Karnataka and Others Criminal Appeal No. 637 of 2015 as follows: -
“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
19. Having looked at the Appellant’s Petition of Appeal, his Written Submissions and those of the Respondent, there are two (2) issues for determination as follows: -
a. Whether or not the Prosecution proved its case beyond reasonable doubt; and
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
Whether or not the Prosecution proved its case beyond reasonable doubt?
20. The issue in this case is whether the prosecution proved its case to the required standards. Most of quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington Vs DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
21. PW1 - Wilberforce Kedogo Atonya, testified that on the material day of 10th October 2023 at 5. 00a.m, he was at his house at Mazungulu with his family who were still asleep when he heard noise from the other room. Her sister was screaming at the shop asking for help she said, “please do not cut her, she is a small child, if its money let me give you”. He said that he left his house and went to her sister’s house using the front door few meters away and tried peeping through the window.
22. It was his further testimony that there were people standing outside and there was street light and bulb light was on. He stated that he then saw three (3) people and when he opened the door they panicked and they wanted to escape. They were coming towards him and he managed to hold one and one man and the other came wielding pangas. He said that they all came cutting him on the head (5) times and hitting him with an iron rod. He concluded that he had 22 cuts on his body.
23. He stated that as they were attacking him, his wife and children continued screaming for help. The attack took ten (10) minutes and that the neighbours came and he lost consciousness. He added that he was bleeding on the head, chest, shoulders and the whole body was oozing blood. He was rushed to hospital in Mbale and was treated and discharged.
24. He further stated that the attackers were four (4) and did not have masks. He stated that he did not know the attackers before the incident but he could identify them after the incident. He added that he was able to identify the Appellant herein together with his co-accused (s) at the identification parade. He pointed out that they had found a small phone button at the scene which was on and they did not handle it. The Police took the phone which was at the scene when they arrived.
25. PW2 - Annaciata Barasi Radima, testified that on the material day, she had opened the shop at 5.00 a.m as usual and was lighting her jiko outside. When she got back to the house she met five (5) men entering into her house that was attached to the shop. The men told her that they were police officers and that they had been told that she sells cigarettes. She stated that they were in plain clothes and did not have face masks
26. Three of the men pushed her into the shop asking if she was selling cigarretes, one of them tried opening the store and placed a padlock, three (3) of the men pulled their shirts and removed pangas and metal rods. They were all armed. They asked for money as they ransacked her bags and shelves removing shop items and bags contents. She said that she told them that she had money and gave them. They took Kshs 17,000/= from her bag and airtime and goods from the shop. When she tried screaming one of them hit her with a panga on the head.
27. They went to another room and wanted to kill a child but she told them not to kill him. They went back to the shop and asked for money and PW 1 came to the veranda. She said that she was held by two of them and one had left to attack her brother. The two then released her and started attacking her brother. She screamed that robbers were killing her brother and a boda boda rider stopped and came to the scene and the robber escaped.
28. She corroborated the evidence of PW 1 that he was cut on the head, hands and back and was severely injured. She also stated that they found the phone at the scene and that she did not know the attackers before the incident but identified them at the identification parade.
29. PW3 - Emily Mugasia testified that she was a neighbor and a village elder. She confirmed that she went to the shop that morning and found PW 1 injured and PW 2 told her that they had been attacked and the shop robbed.
30. PW4 - NO 82260 Corporal Summy Sanchu, the investigating officer’s evidence corroborated that of PW 1, PW 2 and PW 3. He added that when they visited the scene they found the place had blood sprinkled all over and a phone IMEI No 351528042803325 Airtel Line 07844728074 that they used for their investigations. He added that they did a phone analysis that led them to one Bonface who took them to the Accused persons. When they ransacked his house, they found axe, panga and several phones, they took the items to the police station and arraigned the accused persons. He said that the panga was used to cut PW 1 and the metal rod was used to break doors. He produced the panga and the metal rod as exhibits in court.
31. PW5 - Boaz Alion, Clinical Officer, confirmed having treated PW 1. He noted that he had several fractures on front, side and back, outer scalp had cuts and the head had eight (8) cuts, right ear cut and in total had 22 cuts and stitched. He produced a P3 form as exhibit in this case.
Identification
32. The evidence was cogent on identification parade. All caution was taken to ensure that the same was free from error. In this case, where evidence is that of persons known to the parties, a parade is not useful. The court has to consider the weight to be attached to the said identification evidence. The Court of Appeal dealt with issue of whether the identification parade was properly conducted in the case of David Mwita Wanja & 2 others –vs- Republic - Criminal Appeal No. 117 of 2005:-
“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 myriad of other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia Vs 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.”
33. The courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that: -
“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.”
34. Notably, PW 1 and PW 2 confirmed that although they did not know their attackers before the incident, they could identify them after the incident. PW 1 noted that there was street light and bulb light thus sufficient lighting conditions. PW 1 and PW 2 also noted that the attackers were not in face masks. PW 2 confirmed that she kept moving with them from one room to another and PW 1 noted that the incident took about ten (10) minutes. That was sufficient time for PW 1 and PW 2 not to have been mistaken about their faces.
35. In addition, PW 1 and PW 2 were able to identify the Appellant at the identification parade. It was therefore clear from the evidence that was adduced by the Prosecution that PW 1 and PW 2 positively identified the Appellant as having been one of the attackers on the material night. His argument that the Prosecution failed in conducting an identification parade therefore fell on the way side.
36. The fact that a phone was recovered at the scene and the same was used to trace the attackers squarely placed the Appellant herein as one of the perpetrators on those material nights.
37. The offence of robbery with violence is contained in Sections 295 and 296(2) of the Penal Code as follows: -
“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
296(2). If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
38. In Jeremiah Oloo Odira Vs Republic [2018] eKLR 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: -
a. The offender is armed with any dangerous or offensive weapon or instrument, or
b. The offender is in the company of one or more other person or persons, or
c. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person” (See Olouch Vs Republic (1985) KLR)
39. PW1 and PW2 confirmed having seen their attackers with pangas and metal rod. It was evident from the evidence of both PW1 and PW2 that the Appellant was in the company of others during the attacks. There was robbery. Indeed, PW1 testified that the Appellant and his Co-Accused persons robbed her of Kshs 17,000/=, airtime and goods from the shop. It was clear from the aforesaid evidence that the Appellant was in the company of his Co-Accused persons. They were armed with a sharp object and that during, immediately before and after the offence they wounded PW 1. They slapped PW 2 with a Panga on the head and robbed them of the items from the shop.
40. The chain of events was unbroken. The Trial Court thus proceeded correctly when it found that all the ingredients of proving the offence of robbery with violence had been satisfied and hence convicted him accordingly.
41. Going further, Section 214 (1)(i) of Criminal Procedure Code stipulates that: -
“Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that where a charge is so altered, the court shall thereupon
call upon the accused person to plead to the altered charge”
42. Notably, a perusal of the proceedings herein indicate that the Charge Sheet was amended on 1st September 2025 and the Appellant was subjected to taking of plea afresh and a plea of not guilty entered. The Trial Court did not indicate whether it notified the Appellant his right to recall witnesses.
43. Be that as it may, the amendment was done to delete the name of the 1st Accused person who had been discharged under Section 87A of the Criminal Procedure Code to assist him seek treatment. To the mind of this court, the amendment did not affect the flow of evidence in any way to warrant the recall of witnesses, thus the proceedings were not defective in the circumstances. In the premises, Grounds of Appeal No 1, 2, 3 and 4 of the Petition of Appeal dated 22nd December 2025 as amended on 17th March 2026 are not merited and the same be and are hereby dismissed.
Whether the Sentence is merited?
44. The Appellant did not raise any ground of appeal on this issue but submitted on the same. The Respondent did not submit on the issue of sentencing. This court found it prudent to determine the issue for completeness of record.
45. Notably, the Appellant was found guilty of the offence of robbery with violence. Section 295 of the Penal Code states that: -
“Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”
46. Further, Section 296 (1) and (2) of the Penal Code provides as follows: -
1. Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
2. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
47. The Trial Court sentenced the Appellant to twenty-five (25) years imprisonment. In the mind of this court, the Trial Court was lenient as it had the option of sentencing him to death. In view of the atrocity that was meted on PW 1 and PW 2 herein, this court finds that this was one of the instances that the sentence ought to be higher than what was meted upon the Appellant. However, in view of this court’s discretion on sentencing, the sentence of twenty-five (25) years imprisonment remains undisturbed.
48. I have considered The Sentencing Policy Guidelines, 2023 and its application which is intended to promote transparency, consistency and fairness in sentencing. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors and the objects of punishments. Therefore, in sentencing, the gravity of the offence and the consequences of the offence on the victim are relevant factors. Section 333(2) of the Criminal Procedure Code provides: -
“Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”
49. It is clear from the above provision that the law requires courts to take into account the period the convict spent in custody. According to The Judiciary Sentencing Policy Guidelines: -
“The provision to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
50. The requirement to comply with section 333(2) Criminal Procedure Code is mandatory in computation of the sentence to be served by the Convict upon establishing the nature of the sentence to be imposed. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed.
51. In view of the foregoing, the Appellant’s Petition of Appeal dated 22nd December 2025 and amended on 17th March 2026 be and is hereby dismissed. The Trial Court’s Judgment be and is hereby upheld. The sentence of 25 years imposed by the Trial Court shall run from the date of arrest being 4th November 2023.
52. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT VIHIGA THIS 26TH DAY OF MAY 2026
………………………………………….
R. NYAKUNDI
JUDGE