A. THE CHARGE.
1. Charles Abok Agutu (hereinafter referred to as “the Appellant”) was jointly charged before the trial court with another not before this court with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
2. It was stated in the particulars of the offence that on 13th of July, 2023 at about 0555hrs at Thurdibuoro Location in West Koguta Sublocation in Nyakach Subcounty within Kisumu County, jointly with his confederate, the Appellant robbed Beatrice Odhiambo Okello (hereinafter referred to as “the complainant”) of one cell phone make Itel 2160 IMEI No. 352459350809788, black in colour, valued at Ksh.1,500/- and immediately before the time of such robbery used actual violence against the said Beatrice Odhiambo Okello.
3. In the alternative count, the Appellant’s co-accused was charged with the offence of handling stolen goods contrary to Section 322(1) as read with 322(2) of the Penal Code, Cap 63 Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on the 13th day of July, 2023 at West Koguta Sublocation in Nyakach Subcounty within Kisumu County, otherwise than in the course of robbing, the Appellant’s co-accused dishonestly retained one cell phone make Itel 2160 IMEI No. 352459350809788, black in colour, knowing or having reason to believe the same to be stolen goods.
5. The Appellant denied the charge, which then called for a full trial.
6. The prosecution case was founded on the evidence of 6 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 4th October, 2024. The Appellant filed supplementary grounds of appeal dated 24th March, 2025. The grounds of appeal may be summarized as follows:
1. Insufficient evidence and/or unproven ingredients of the offence:
- The learned trial Magistrate erred in law and fact by convicting the Appellant when the ingredients of the offence were not proved to the required standard.
- The learned trial Magistrate erred in law by relying on the prosecution’s circumstantial evidence that contained inconsistencies, contradictions and gaps making the evidence unreliable.
- The learned trial Magistrate erred in law by failing to address conflicting, irrelevant and/or contradictory evidence.
2. Identification evidence issues:
- The learned trial Magistrate erred in law in convicting the Appellant by relying on identification evidence that was inconclusive.
3. Doctrine of recent possession misapplied:
- The learned trial Magistrate erred in applying the doctrine of recent possession when its ingredients were not proved beyond reasonable doubt.
4. Procedural irregularities and/or fatal defects in evidence:
- The learned trial Magistrate erred in failing to ascertain that the proceedings were conducted in a language that the Appellant understood.
- The learned trial Magistrate erred in convicting the Appellant by relying on evidence that the Appellant was not afforded an opportunity to test through cross-examination.
5. Sentencing and/or fair trial rights:
- Denial of the Appellant’s right to the least prescribed sentence, violating Articles 25(c) and 50(2)(p) of the Constitution, leading to an unfair trial.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
11. The prosecution’s case before the trial court was primarily anchored on the testimony of the complainant, PW1, Beatrice Adhiambo Okello, a security guard. The witness testified and told the trial court that on 13th July, 2023 at about 5.30am., she left her home to report to work. At approximately 5.55am., while walking along the road, she was suddenly ambushed by a man who emerged from nearby bushes. He grabbed her from behind by the neck, causing her to fall.
12. PW1 initially stated that it was dark and that there was no source of light. However, she later indicated that there was illumination from a floodlight mounted at Halfcon Security, which enabled her to observe the clothing of her attackers. The attacker, who was armed with a panga and was filing it on the road, strangled her after she fell and covered her mouth to prevent her from screaming. Although she did not see his face, she described his attire as a grey pullover, a cap and blue trousers with side pockets.
13. The witness told the trial court that during the struggle, her phone fell from her hand onto the road. She further testified that when she began bleeding from the mouth and nose, the attacker stopped strangling her, turned her onto her back, slapped her with the panga and then fled with her phone. She lost consciousness shortly thereafter. Upon regaining consciousness, she screamed, attracting the attention of one Nelly Auma, who came to her aid. PW1 narrated the incident to her, and shortly thereafter, her colleagues arrived at the scene.
14. The witness told the trial court that her supervisor at work later transported her to Pap Onditi Hospital, where she received treatment and was granted a week’s sick off. In support of her testimony, PW1 produced her phone purchase receipt (PExh1), indicating the phone’s value as Ksh.7,500/-, her treatment notes (PExh2) and a P3 form that was subsequently completed at Nyakach Sub-County Hospital (PExh3).
15. PW1 further testified that police officers later attempted to trace her stolen phone. When they called it, the person who answered identified himself as Victor and claimed to be from Kendu Bay. The phone was eventually tracked and recovered and PW1 identified it in court as her stolen device (PExh4).
16. The complainant stated that the Appellant and his co-accused were found in possession of the phone, although she had not known or seen either of them prior to the incident or their appearance in court.
17. Upon cross-examination, the complainant reiterated that she did not see the attacker’s face and could only identify the clothing worn by the assailant who attacked her. She added that she was later shown the Appellant by the police and was informed that the co-accused had purchased the phone after it had been stolen from her.
18. The second prosecution witness, PW2, Nelly Sagina, testified that she was a resident of the Kongono area and worked as a security guard. She recalled that on 13th July, 2023 at about 6.00am., while on duty at the KenGen Power Station, she heard the complainant calling out her name from outside the gate, asking to be let in and stating that she had been attacked and strangled.
19. Upon allowing her entry, PW2 observed that the complainant appeared injured and visibly weak. She promptly contacted her supervisor, who in turn informed the manager, following which arrangements were made to have the complainant taken to hospital for treatment.
20. PW2 further testified that police officers later attempted to trace the complainant’s stolen phone. She stated that the phone had not been switched off, was successfully tracked and eventually recovered. She added that she came to learn that the Appellant had purchased the complainant’s stolen phone.
21. During cross-examination, PW2 clarified that she did not witness the attack and only responded after the complainant reported the incident to her.
22. The third prosecution witness, PW3, Morice Mondem, testified that he was a resident of the Kobura area and worked as a security officer at KenGen Power Station. He stated that on 13th July, 2023, he was on night shift and was in charge at the station.
23. The witness stated that at about 6.00am., he received a report from one of the guards informing him that the complainant had been attacked, robbed and injured. In response, PW3, together with a police officer stationed at the power station, proceeded to where the complainant was. He observed that she was visibly injured. He then informed the station manager, who arrived with a motor vehicle and facilitated the complainant’s transfer to hospital for treatment.
24. The witness was not cross-examined.
25. The fourth prosecution witness, PW4, Polycarp Odhiambo, a police officer in charge at the KenGen Station, testified that on 13th July, 2023, he received a phone call from a fellow officer reporting that the complainant had been attacked, robbed and injured. He immediately responded and, upon heading towards the scene, observed a man approximately 50 metres away running while holding a torch. The man was described as wearing grey jeans and having what appeared to be a rope tied around his thigh.
26. PW4, who was armed with a rifle, pursued the suspect, who fled across a bridge and escaped. He then returned to the station, where he was informed that the injured complainant had already been taken to hospital.
27. PW4 further testified that he attempted to trace the complainant’s stolen phone by calling her number, which was answered. Shortly thereafter, he received another call from a different number (0783****17) and recognized the same voice as that of the person who had answered the complainant’s phone. He sought assistance from the area Assistant Chief, and together they managed to recover the phone from an individual whose name he did not disclose and who was not called as a witness in the case.
28. The witness stated that upon examining the recovered phone, he found that it contained a contact saved under the name “Charles Abok alias Atoti,” which he alleged was the Appellant’s phone number, although he did not provide that number in court. He later proceeded to arrest the Appellant at his home in Homabay County. At the time of arrest, the Appellant was not found in possession of any stolen item. However, according to PW4, the Appellant informed the officers that he had stolen the phone and had sold the it to his co-accused for Ksh.500/-. The officer identified the recovered phone (PExh4).
29. During cross-examination, PW4 reiterated that it was the Appellant who led the officers to his co-accused. He added that the Appellant claimed to have been paid Ksh.200/-, leaving a balance of Ksh.300/-. The officers then proceeded to the co-accused’s location, where the phone was recovered, and the co-accused was subsequently arrested.
30. On 21st May, 2024, the trial court was informed of the death of the Appellant’s co-accused. Consequently, the court directed that the trial proceed solely against the Appellant.
31. The fifth prosecution witness, PW5, David Matheri, a clinical officer stationed at Nyakach Sub-County Hospital at the material time, testified regarding the complainant’s medical examination. He stated that he completed the complainant’s P3 form on 14th July, 2023.
32. According to PW5, the complainant had initially been treated the previous day and reported having been assaulted on 13th July, 2023. Upon examination, he noted injuries to her neck, mouth and back, all of which he documented in the P3 form. He produced the P3 form together with the complainant’s treatment notes as exhibits in court. He assessed the degree of injury sustained by the complainant as harm.
33. The sixth and final prosecution witness, PW6, Police Constable Charles Madola of Sondu Miriu Police Station, testified as the investigating officer in the matter. He stated that he took over the case from another officer who had been transferred to a different station.
34. PW6 informed the trial court that his predecessor had conducted the initial investigations, including recording witness statements, collecting exhibits and compiling the police file. Based on those investigations, the Appellant and his co-accused were subsequently charged.
35. During cross-examination, PW6 stated that the recovered phone was found in the possession of the Appellant’s co-accused after the Appellant led police officers to him and admitted to having stolen it.
36. The prosecution thereafter closed its case. In a considered ruling delivered on 5th August, 2024, the trial court found that the Appellant had a case to answer and accordingly placed him on his defence.
37. In his sworn defence, the Appellant testified that he was a resident of Kobuya area and a farmer by occupation. He stated that on 13th July, 2023, he was at his home herding his mother’s cattle when five men arrived, one of whom introduced himself as the area chief from Nyakach. The men requested him to assist in retrieving the body of a person who had allegedly drowned in a river, as he was a diver.
38. The Appellant explained that he was initially reluctant, as he had been experiencing nightmares following previous body retrievals. However, after further persuasion, he agreed, tethered the cattle and accompanied them. He further stated that they boarded a motorcycle and proceeded to Nyakach area, where they went to a homestead and later returned with an elderly man.
39. Thereafter, he was taken to Nyakach Police Station, where he was placed in custody after surrendering his identity card and mobile phone number as directed. He contended that he was not informed of the reason for his arrest and was subsequently charged in court on 17th July, 2023.
40. On being cross examined, the Appellant reiterated that five men went to his home on 13th July, 2023 at 2.oopm.
41. The Appellant did not call any witness.
E. THE TRIAL COURT’S ANALYSIS AND FINDINGS.
42. Upon the close of the trial, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, set out the issues for determination as follows:
1. Whether prosecution evidence on record is capable to sustain a conviction against the 1st accused herein for the offences that are levelled against him.
2. Whether prosecution have proved its case against the 1st accused herein to the required threshold in law in criminal cases.
3. Whether the defence raised by the 1st accused has weakened, distorted or replaced the prosecution evidence on record.
4. And lastly, whether the 1st accused herein is guilty as charged.
43. The learned trial Magistrate, guided by case law, then went on to list and explain the ingredients of the offence of robbery with violence under Section 296(2) of the Penal Code and that of handling stolen property contrary to Section 322(2) of the same statute. She then went on with her analysis as follows:
“From the prosecution evidence on record, the complainant herein that was going to her work place at 5.55am was suddenly attacked while near her work place by a person that suddenly emerged from behind and suddenly grabbed her neck from behind and began strangling her. She fell down and result and sustained injuries on her mouth, nose and back. She had a phone (make itel) that fell which the accused took from her then ran away. She was taken to hospital by her fellow colleagues and went to report the matter to the police that launched investigations immediately. Her said phone was later found in possession the 2nd accused herein that alleged the 1st accused has sold it to him.
Having considered all the above; provisions of law, the cited cases and all materials placed before me, I find prosecution to have stablished/proved its case against the accused herein beyond reasonable doubt in both the main and alternative charged respectively for the following reasons;
1. Prosecution evidence on record has squarely placed the accused herein at the scene of crime being near the Kengen Power Station at Songoro area.
2. Prosecution established that the offender was armed with a dangerous or offensive weapon or instrument namely a panga that he used to inflict in juries on the complainant which the said complainant also confirmed that the court; also, the P3 confirmed that a blunt weapon was used to inflict injury on the complainant.
3. Prosecution established that at or immediately before or immediately after the time of the robbery, he beat up and wounded the complainant herein as evidenced by the P3 form on record that classified the injuries sustained by the complainant on her nose, mouth and back as harm.
4. Prosecution produced before court the recovered itel phone of the complainant herein that she positively identified as belonging to her and produced a receipt thereof her evidence/proof of ownership.
5. It is the prosecution’s uncontroverted evidence that the 1st accused herein sold the complainant’s recovered phone before the court to his co-accused herein Bob that is now deceased. He led police to the house of the said Bob after admitting to having sold the said phone to him for Ksh.500/- and was paid Ksh.200/- from whom the police recovered the stolen phone but he pointed his fingers at the 1st accused before court saying he had sold the same to him.
6. The accused before court did not offer any explanation to the police as to how he came into possession of the said recovered phone in question thereby leaving this court with no other option other than to draw the inference that the accused herein that he was either the thief or a handler by way of receiving (though not by way of retaining).
7. Prosecution established to the court first that an itel phone was stolen from the complainant; secondly that the said phone was positively the property of the complainant; thirdly that the said phone was stolen from the complainant and lastly that the said phone was recently stole from the complainant.
8. From the prosecution evidence on record, the incident occurred at 5.55am on 13th July, 2023 while the alleged phone was recovered from the second accused herein after 2.00pm when police visited the 1st accused’s house at 2.00pm and he admitted to the crime and said he has however sold the phone to the second accused herein that is now deceased and true to his word, police recovered the said phone from the second accused at his house that admitted to having been sold the same by the 1st accused herein causing both of them to be arrested by police.
9. The defence raised has not cast any doubt on the prosecution case that is well corroborated, precise and cogent and stands unchallenged.
For the above said reason, it is the finding of the court that the prosecution evidence on record is capable to sustain a conviction against the accused herein in both the main and alternative charges against him respectively. In the circumstances therefore, I hereby find the accused herein guilty as charged in both the main and alternative charges against him respectively under Section 215 of the Criminal Penal Code.”
44. With the above, the trial court went on to find that the prosecution had proved the offence of robbery with violence against the Appellant and the alternative charge of handling stolen goods.
45. In sentencing the Appellant, the learned trial Magistrate rendered herself as follows:
“For the main charge, he is sentenced to death. For the alternative charge, the same shall remain in abeyance as he is already convicted in the main charge.”
F. THE APPELLANT’S SUBMISSIONS.
46. In his written submissions, the Appellant contended that the trial court erred in law and in fact by convicting him on the basis of weak circumstantial evidence under the doctrine of recent possession. He argued that the evidence relied upon was riddled with co-existing circumstances that destroyed any inference of guilt.
47. The Appellant submitted that the alleged proof of ownership, being a receipt, was not produced as an exhibit but was merely marked for identification. He contended that such a document did not constitute evidence and could not be relied upon by the court.
48. The Appellant further argued that there was no proof that the phone was found in his constructive possession. He also faulted the prosecution for failing to call Safaricom data or a liaison officer to confirm the registered owner of the phone number in question. He pointed out inconsistencies in the value of the phone, noting that the receipt indicated Ksh.7,500/- while the charge sheet indicated Ksh.1,500/-. He argued that this discrepancy raised doubt as to whether the phone produced in evidence was the one allegedly stolen.
49. The Appellant also submitted that the prosecution failed to demonstrate how the complainant identified the phone as hers. He further argued that there was no duly filled and signed inventory to support the alleged recovery of the phone.
50. In support of his arguments on circumstantial evidence, the Appellant relied on Letzur Teper vs The Queen (1952) 20 HC 48 and Anarita Karimi Njeru vs Republic [1979] eKLR.
51. The Appellant contended that the alleged admission attributed to him amounted to a confession which did not comply with Section 25A of the Evidence Act. He argued that the same was therefore inadmissible under Article 50(4) of the Constitution.
52. The Appellant further submitted that the evidence of the co-accused, which implicated him, was not subjected to cross-examination as the co-accused died before the close of the prosecution case. He argued that this violated his right to a fair trial. In that regard, he relied on the authority of Kiarie and Another vs Republic [1986] KLR 281, submitting that reliance on such untested evidence occasioned a miscarriage of justice.
53. The Appellant also argued that the prosecution failed to prove the ingredients of robbery with violence under Section 296(2) of the Penal Code beyond reasonable doubt. He contended that the evidence showed that the offence was committed by a single assailant. He submitted that the charge sheet did not indicate that he was armed with a dangerous or offensive weapon. He argued that the evidence of a panga was an afterthought not supported by the particulars of the charge. He relied on the case of Juma vs Republic [2003] EA 471 for the proposition that where the prosecution relies on the ingredient of being armed, it must be expressly stated in the charge sheet.
54. The Appellant further argued that medical evidence was not properly adduced since the P3 form and treatment notes were not produced as exhibits. He contended that the trial court erred in relying on the same.
55. The Appellant also challenged the validity of the charge sheet, submitting that it was defective for failing to accord with the evidence adduced at trial. He pointed to discrepancies between the charge sheet and the evidence, including the omission of the alleged weapon, inconsistency in the value of the phone, and the indication of multiple offenders whereas the evidence pointed to a single assailant. In this regard, he relied on Jason Akumu Yongo vs Republic [1983] eKLR on the principles governing defective charges.
56. The Appellant further argued that he was effectively convicted on the basis of handling stolen property despite not being charged with that offence.
57. The Appellant contended that the conviction was based on inconclusive and uncorroborated identification evidence of a single witness. He argued that the incident occurred in darkness and that the complainant’s face was covered, limiting her ability to identify the assailant. He further submitted that the complainant lost consciousness shortly after the incident and did not provide a description of the attacker at the earliest opportunity. He pointed out inconsistencies in the complainant’s testimony, including her assertion that she saw the perpetrator at the police station before his arrest. He also argued that no identification parade was conducted and that the identification was influenced by the police.
58. Finally, the Appellant submitted that the trial court failed to consider the least prescribed sentence and his constitutional rights under Articles 25(c), 50(2)(p), 27, 28 and 29 of the Constitution. He urged the court, in the alternative, to consider a reduced sentence and to take into account the period already spent in custody pursuant to Section 333(2) of the Criminal Procedure Code.
G. THE RESPONDENT’S SUBMISSIONS.
59. The State (the Respondent), in its written submissions, contended that the prosecution called seven witnesses who and that their evidence was consistent and sufficient to sustain the conviction. The Respondent further submitted that documentary and physical exhibits, including the phone receipt, treatment notes, P3 form and the recovered phone, were produced and collectively established ownership, corroborated the injuries sustained and linked the Appellant to the offence.
60. The Respondent submitted that during the trial the second accused died and the charge against him was lawfully withdrawn under Section 87(a) of the Criminal Procedure Code. The Respondent further noted that the trial court found that the Appellant had a case to answer, after which he gave sworn testimony in his defence without calling any witnesses, and was subsequently convicted and sentenced.
61. The Respondent identified five issues for determination, namely: whether the doctrine of recent possession was properly applied; whether the ingredients of robbery with violence were proved; whether the charge sheet was defective; whether identification evidence was sufficient; and whether the Appellant’s right to a fair trial was violated.
62. On the doctrine of recent possession, the Respondent submitted that the trial court properly applied the doctrine and that the circumstantial evidence was overwhelming. The state relied on the case of Chaama Hassan Hasa v Republic [1976] KLR 5, which set out the presumption arising from possession of recently stolen property. The Respondent further relied on the authority of Arum v Republic, Kisumu Criminal Appeal No. 85 of 2005, for the conditions necessary to invoke the doctrine, namely proof of possession, ownership, theft and recency. The Respondent argued that all these elements were satisfied in the present case.
63. The Respondent submitted that the stolen phone was recovered from the second accused on the same day it was stolen, thereby establishing recent possession and further argued that the complainant positively identified the phone in court and had earlier identified its receipt.
64. The state contended that the theft was proved through the complainant’s evidence describing the violent robbery, including the use of force and loss of consciousness.
65. The Respondent further submitted that the Appellant admitted to selling the phone to the second accused and led the police to its recovery and argued that this evidence was corroborated by multiple prosecution witnesses, including the arresting officers and the investigating officer. The Respondent placed reliance on the case of Paul Mwita Robi v Republic, Kisumu Criminal Appeal No. 200 of 2008, to submit that once possession of recently stolen property is established, the burden shifts to the accused to explain such possession, which the Appellant failed to do.
66. The Respondent dismissed the Appellant’s arguments regarding the receipt and discrepancies in value, submitting that the phone was sufficiently identified through its IMEI number and the Appellant’s own admissions.
67. On the ingredients of robbery with violence, the Respondent submitted that all elements under Section 296(2) of the Penal Code were proved beyond reasonable doubt. The Respondent argued that theft was established through the complainant’s testimony and the recovery of the stolen phone.
68. The state further submitted that violence was proved through the complainant’s account of being attacked, strangled and struck, which was corroborated by medical evidence. The Respondent relied on the medical evidence adduced by the clinician, who confirmed injuries consistent with harm caused by a blunt object and submitted that the use of a dangerous weapon was established through the complainant’s testimony regarding a panga, and that in any event, proof of actual violence alone was sufficient under Section 296(2).
69. The Respondent argued that the Appellant’s contention regarding non-production of medical documents was incorrect, as the P3 form and treatment notes were duly produced as exhibits.
70. On the alleged defective charge sheet, the Respondent submitted that the charge was properly framed and contained all essential particulars required under the law. The Respondent relied on the authority of Jason Akumu Yongo v Republic [1983] eKLR for the test of a defective charge and argued that the charge sheet in the present case met the required legal threshold.
71. The Respondent contended that the particulars of the charge, including the date, time, place and nature of the offence, were clearly stated and supported by the evidence on record and further submitted that any discrepancy in the value of the phone did not render the charge defective, as the phone was properly identified.
72. The Respondent argued that the joint nature of the charge was justified by the involvement of both accused persons
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1. Charles Abok Agutu (hereinafter referred to as “the Appellant”) was jointly charged before the trial court with another not before this court with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
2. It was stated in the particulars of the offence that on 13th of July, 2023 at about 0555hrs at Thurdibuoro Location in West Koguta Sublocation in Nyakach Subcounty within Kisumu County, jointly with his confederate, the Appellant robbed Beatrice Odhiambo Okello (hereinafter referred to as “the complainant”) of one cell phone make Itel 2160 IMEI No. 352459350809788, black in colour, valued at Ksh.1,500/- and immediately before the time of such robbery used actual violence against the said Beatrice Odhiambo Okello.
3. In the alternative count, the Appellant’s co-accused was charged with the offence of handling stolen goods contrary to Section 322(1) as read with 322(2) of the Penal Code, Cap 63 Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on the 13th day of July, 2023 at West Koguta Sublocation in Nyakach Subcounty within Kisumu County, otherwise than in the course of robbing, the Appellant’s co-accused dishonestly retained one cell phone make Itel 2160 IMEI No. 352459350809788, black in colour, knowing or having reason to believe the same to be stolen goods.
5. The Appellant denied the charge, which then called for a full trial.
6. The prosecution case was founded on the evidence of 6 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 4th October, 2024. The Appellant filed supplementary grounds of appeal dated 24th March, 2025. The grounds of appeal may be summarized as follows:
1. Insufficient evidence and/or unproven ingredients of the offence:
- The learned trial Magistrate erred in law and fact by convicting the Appellant when the ingredients of the offence were not proved to the required standard.
- The learned trial Magistrate erred in law by relying on the prosecution’s circumstantial evidence that contained inconsistencies, contradictions and gaps making the evidence unreliable.
- The learned trial Magistrate erred in law by failing to address conflicting, irrelevant and/or contradictory evidence.
2. Identification evidence issues:
- The learned trial Magistrate erred in law in convicting the Appellant by relying on identification evidence that was inconclusive.
3. Doctrine of recent possession misapplied:
- The learned trial Magistrate erred in applying the doctrine of recent possession when its ingredients were not proved beyond reasonable doubt.
4. Procedural irregularities and/or fatal defects in evidence:
- The learned trial Magistrate erred in failing to ascertain that the proceedings were conducted in a language that the Appellant understood.
- The learned trial Magistrate erred in convicting the Appellant by relying on evidence that the Appellant was not afforded an opportunity to test through cross-examination.
5. Sentencing and/or fair trial rights:
- Denial of the Appellant’s right to the least prescribed sentence, violating Articles 25(c) and 50(2)(p) of the Constitution, leading to an unfair trial.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
11. The prosecution’s case before the trial court was primarily anchored on the testimony of the complainant, PW1, Beatrice Adhiambo Okello, a security guard. The witness testified and told the trial court that on 13th July, 2023 at about 5.30am., she left her home to report to work. At approximately 5.55am., while walking along the road, she was suddenly ambushed by a man who emerged from nearby bushes. He grabbed her from behind by the neck, causing her to fall.
12. PW1 initially stated that it was dark and that there was no source of light. However, she later indicated that there was illumination from a floodlight mounted at Halfcon Security, which enabled her to observe the clothing of her attackers. The attacker, who was armed with a panga and was filing it on the road, strangled her after she fell and covered her mouth to prevent her from screaming. Although she did not see his face, she described his attire as a grey pullover, a cap and blue trousers with side pockets.
13. The witness told the trial court that during the struggle, her phone fell from her hand onto the road. She further testified that when she began bleeding from the mouth and nose, the attacker stopped strangling her, turned her onto her back, slapped her with the panga and then fled with her phone. She lost consciousness shortly thereafter. Upon regaining consciousness, she screamed, attracting the attention of one Nelly Auma, who came to her aid. PW1 narrated the incident to her, and shortly thereafter, her colleagues arrived at the scene.
14. The witness told the trial court that her supervisor at work later transported her to Pap Onditi Hospital, where she received treatment and was granted a week’s sick off. In support of her testimony, PW1 produced her phone purchase receipt (PExh1), indicating the phone’s value as Ksh.7,500/-, her treatment notes (PExh2) and a P3 form that was subsequently completed at Nyakach Sub-County Hospital (PExh3).
15. PW1 further testified that police officers later attempted to trace her stolen phone. When they called it, the person who answered identified himself as Victor and claimed to be from Kendu Bay. The phone was eventually tracked and recovered and PW1 identified it in court as her stolen device (PExh4).
16. The complainant stated that the Appellant and his co-accused were found in possession of the phone, although she had not known or seen either of them prior to the incident or their appearance in court.
17. Upon cross-examination, the complainant reiterated that she did not see the attacker’s face and could only identify the clothing worn by the assailant who attacked her. She added that she was later shown the Appellant by the police and was informed that the co-accused had purchased the phone after it had been stolen from her.
18. The second prosecution witness, PW2, Nelly Sagina, testified that she was a resident of the Kongono area and worked as a security guard. She recalled that on 13th July, 2023 at about 6.00am., while on duty at the KenGen Power Station, she heard the complainant calling out her name from outside the gate, asking to be let in and stating that she had been attacked and strangled.
19. Upon allowing her entry, PW2 observed that the complainant appeared injured and visibly weak. She promptly contacted her supervisor, who in turn informed the manager, following which arrangements were made to have the complainant taken to hospital for treatment.
20. PW2 further testified that police officers later attempted to trace the complainant’s stolen phone. She stated that the phone had not been switched off, was successfully tracked and eventually recovered. She added that she came to learn that the Appellant had purchased the complainant’s stolen phone.
21. During cross-examination, PW2 clarified that she did not witness the attack and only responded after the complainant reported the incident to her.
22. The third prosecution witness, PW3, Morice Mondem, testified that he was a resident of the Kobura area and worked as a security officer at KenGen Power Station. He stated that on 13th July, 2023, he was on night shift and was in charge at the station.
23. The witness stated that at about 6.00am., he received a report from one of the guards informing him that the complainant had been attacked, robbed and injured. In response, PW3, together with a police officer stationed at the power station, proceeded to where the complainant was. He observed that she was visibly injured. He then informed the station manager, who arrived with a motor vehicle and facilitated the complainant’s transfer to hospital for treatment.
24. The witness was not cross-examined.
25. The fourth prosecution witness, PW4, Polycarp Odhiambo, a police officer in charge at the KenGen Station, testified that on 13th July, 2023, he received a phone call from a fellow officer reporting that the complainant had been attacked, robbed and injured. He immediately responded and, upon heading towards the scene, observed a man approximately 50 metres away running while holding a torch. The man was described as wearing grey jeans and having what appeared to be a rope tied around his thigh.
26. PW4, who was armed with a rifle, pursued the suspect, who fled across a bridge and escaped. He then returned to the station, where he was informed that the injured complainant had already been taken to hospital.
27. PW4 further testified that he attempted to trace the complainant’s stolen phone by calling her number, which was answered. Shortly thereafter, he received another call from a different number (0783****17) and recognized the same voice as that of the person who had answered the complainant’s phone. He sought assistance from the area Assistant Chief, and together they managed to recover the phone from an individual whose name he did not disclose and who was not called as a witness in the case.
28. The witness stated that upon examining the recovered phone, he found that it contained a contact saved under the name “Charles Abok alias Atoti,” which he alleged was the Appellant’s phone number, although he did not provide that number in court. He later proceeded to arrest the Appellant at his home in Homabay County. At the time of arrest, the Appellant was not found in possession of any stolen item. However, according to PW4, the Appellant informed the officers that he had stolen the phone and had sold the it to his co-accused for Ksh.500/-. The officer identified the recovered phone (PExh4).
29. During cross-examination, PW4 reiterated that it was the Appellant who led the officers to his co-accused. He added that the Appellant claimed to have been paid Ksh.200/-, leaving a balance of Ksh.300/-. The officers then proceeded to the co-accused’s location, where the phone was recovered, and the co-accused was subsequently arrested.
30. On 21st May, 2024, the trial court was informed of the death of the Appellant’s co-accused. Consequently, the court directed that the trial proceed solely against the Appellant.
31. The fifth prosecution witness, PW5, David Matheri, a clinical officer stationed at Nyakach Sub-County Hospital at the material time, testified regarding the complainant’s medical examination. He stated that he completed the complainant’s P3 form on 14th July, 2023.
32. According to PW5, the complainant had initially been treated the previous day and reported having been assaulted on 13th July, 2023. Upon examination, he noted injuries to her neck, mouth and back, all of which he documented in the P3 form. He produced the P3 form together with the complainant’s treatment notes as exhibits in court. He assessed the degree of injury sustained by the complainant as harm.
33. The sixth and final prosecution witness, PW6, Police Constable Charles Madola of Sondu Miriu Police Station, testified as the investigating officer in the matter. He stated that he took over the case from another officer who had been transferred to a different station.
34. PW6 informed the trial court that his predecessor had conducted the initial investigations, including recording witness statements, collecting exhibits and compiling the police file. Based on those investigations, the Appellant and his co-accused were subsequently charged.
35. During cross-examination, PW6 stated that the recovered phone was found in the possession of the Appellant’s co-accused after the Appellant led police officers to him and admitted to having stolen it.
36. The prosecution thereafter closed its case. In a considered ruling delivered on 5th August, 2024, the trial court found that the Appellant had a case to answer and accordingly placed him on his defence.
37. In his sworn defence, the Appellant testified that he was a resident of Kobuya area and a farmer by occupation. He stated that on 13th July, 2023, he was at his home herding his mother’s cattle when five men arrived, one of whom introduced himself as the area chief from Nyakach. The men requested him to assist in retrieving the body of a person who had allegedly drowned in a river, as he was a diver.
38. The Appellant explained that he was initially reluctant, as he had been experiencing nightmares following previous body retrievals. However, after further persuasion, he agreed, tethered the cattle and accompanied them. He further stated that they boarded a motorcycle and proceeded to Nyakach area, where they went to a homestead and later returned with an elderly man.
39. Thereafter, he was taken to Nyakach Police Station, where he was placed in custody after surrendering his identity card and mobile phone number as directed. He contended that he was not informed of the reason for his arrest and was subsequently charged in court on 17th July, 2023.
40. On being cross examined, the Appellant reiterated that five men went to his home on 13th July, 2023 at 2.oopm.
41. The Appellant did not call any witness.
E. THE TRIAL COURT’S ANALYSIS AND FINDINGS.
42. Upon the close of the trial, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, set out the issues for determination as follows:
1. Whether prosecution evidence on record is capable to sustain a conviction against the 1st accused herein for the offences that are levelled against him.
2. Whether prosecution have proved its case against the 1st accused herein to the required threshold in law in criminal cases.
3. Whether the defence raised by the 1st accused has weakened, distorted or replaced the prosecution evidence on record.
4. And lastly, whether the 1st accused herein is guilty as charged.
43. The learned trial Magistrate, guided by case law, then went on to list and explain the ingredients of the offence of robbery with violence under Section 296(2) of the Penal Code and that of handling stolen property contrary to Section 322(2) of the same statute. She then went on with her analysis as follows:
“From the prosecution evidence on record, the complainant herein that was going to her work place at 5.55am was suddenly attacked while near her work place by a person that suddenly emerged from behind and suddenly grabbed her neck from behind and began strangling her. She fell down and result and sustained injuries on her mouth, nose and back. She had a phone (make itel) that fell which the accused took from her then ran away. She was taken to hospital by her fellow colleagues and went to report the matter to the police that launched investigations immediately. Her said phone was later found in possession the 2nd accused herein that alleged the 1st accused has sold it to him.
Having considered all the above; provisions of law, the cited cases and all materials placed before me, I find prosecution to have stablished/proved its case against the accused herein beyond reasonable doubt in both the main and alternative charged respectively for the following reasons;
1. Prosecution evidence on record has squarely placed the accused herein at the scene of crime being near the Kengen Power Station at Songoro area.
2. Prosecution established that the offender was armed with a dangerous or offensive weapon or instrument namely a panga that he used to inflict in juries on the complainant which the said complainant also confirmed that the court; also, the P3 confirmed that a blunt weapon was used to inflict injury on the complainant.
3. Prosecution established that at or immediately before or immediately after the time of the robbery, he beat up and wounded the complainant herein as evidenced by the P3 form on record that classified the injuries sustained by the complainant on her nose, mouth and back as harm.
4. Prosecution produced before court the recovered itel phone of the complainant herein that she positively identified as belonging to her and produced a receipt thereof her evidence/proof of ownership.
5. It is the prosecution’s uncontroverted evidence that the 1st accused herein sold the complainant’s recovered phone before the court to his co-accused herein Bob that is now deceased. He led police to the house of the said Bob after admitting to having sold the said phone to him for Ksh.500/- and was paid Ksh.200/- from whom the police recovered the stolen phone but he pointed his fingers at the 1st accused before court saying he had sold the same to him.
6. The accused before court did not offer any explanation to the police as to how he came into possession of the said recovered phone in question thereby leaving this court with no other option other than to draw the inference that the accused herein that he was either the thief or a handler by way of receiving (though not by way of retaining).
7. Prosecution established to the court first that an itel phone was stolen from the complainant; secondly that the said phone was positively the property of the complainant; thirdly that the said phone was stolen from the complainant and lastly that the said phone was recently stole from the complainant.
8. From the prosecution evidence on record, the incident occurred at 5.55am on 13th July, 2023 while the alleged phone was recovered from the second accused herein after 2.00pm when police visited the 1st accused’s house at 2.00pm and he admitted to the crime and said he has however sold the phone to the second accused herein that is now deceased and true to his word, police recovered the said phone from the second accused at his house that admitted to having been sold the same by the 1st accused herein causing both of them to be arrested by police.
9. The defence raised has not cast any doubt on the prosecution case that is well corroborated, precise and cogent and stands unchallenged.
For the above said reason, it is the finding of the court that the prosecution evidence on record is capable to sustain a conviction against the accused herein in both the main and alternative charges against him respectively. In the circumstances therefore, I hereby find the accused herein guilty as charged in both the main and alternative charges against him respectively under Section 215 of the Criminal Penal Code.”
44. With the above, the trial court went on to find that the prosecution had proved the offence of robbery with violence against the Appellant and the alternative charge of handling stolen goods.
45. In sentencing the Appellant, the learned trial Magistrate rendered herself as follows:
“For the main charge, he is sentenced to death. For the alternative charge, the same shall remain in abeyance as he is already convicted in the main charge.”
F. THE APPELLANT’S SUBMISSIONS.
46. In his written submissions, the Appellant contended that the trial court erred in law and in fact by convicting him on the basis of weak circumstantial evidence under the doctrine of recent possession. He argued that the evidence relied upon was riddled with co-existing circumstances that destroyed any inference of guilt.
47. The Appellant submitted that the alleged proof of ownership, being a receipt, was not produced as an exhibit but was merely marked for identification. He contended that such a document did not constitute evidence and could not be relied upon by the court.
48. The Appellant further argued that there was no proof that the phone was found in his constructive possession. He also faulted the prosecution for failing to call Safaricom data or a liaison officer to confirm the registered owner of the phone number in question. He pointed out inconsistencies in the value of the phone, noting that the receipt indicated Ksh.7,500/- while the charge sheet indicated Ksh.1,500/-. He argued that this discrepancy raised doubt as to whether the phone produced in evidence was the one allegedly stolen.
49. The Appellant also submitted that the prosecution failed to demonstrate how the complainant identified the phone as hers. He further argued that there was no duly filled and signed inventory to support the alleged recovery of the phone.
50. In support of his arguments on circumstantial evidence, the Appellant relied on Letzur Teper vs The Queen (1952) 20 HC 48 and Anarita Karimi Njeru vs Republic [1979] eKLR.
51. The Appellant contended that the alleged admission attributed to him amounted to a confession which did not comply with Section 25A of the Evidence Act. He argued that the same was therefore inadmissible under Article 50(4) of the Constitution.
52. The Appellant further submitted that the evidence of the co-accused, which implicated him, was not subjected to cross-examination as the co-accused died before the close of the prosecution case. He argued that this violated his right to a fair trial. In that regard, he relied on the authority of Kiarie and Another vs Republic [1986] KLR 281, submitting that reliance on such untested evidence occasioned a miscarriage of justice.
53. The Appellant also argued that the prosecution failed to prove the ingredients of robbery with violence under Section 296(2) of the Penal Code beyond reasonable doubt. He contended that the evidence showed that the offence was committed by a single assailant. He submitted that the charge sheet did not indicate that he was armed with a dangerous or offensive weapon. He argued that the evidence of a panga was an afterthought not supported by the particulars of the charge. He relied on the case of Juma vs Republic [2003] EA 471 for the proposition that where the prosecution relies on the ingredient of being armed, it must be expressly stated in the charge sheet.
54. The Appellant further argued that medical evidence was not properly adduced since the P3 form and treatment notes were not produced as exhibits. He contended that the trial court erred in relying on the same.
55. The Appellant also challenged the validity of the charge sheet, submitting that it was defective for failing to accord with the evidence adduced at trial. He pointed to discrepancies between the charge sheet and the evidence, including the omission of the alleged weapon, inconsistency in the value of the phone, and the indication of multiple offenders whereas the evidence pointed to a single assailant. In this regard, he relied on Jason Akumu Yongo vs Republic [1983] eKLR on the principles governing defective charges.
56. The Appellant further argued that he was effectively convicted on the basis of handling stolen property despite not being charged with that offence.
57. The Appellant contended that the conviction was based on inconclusive and uncorroborated identification evidence of a single witness. He argued that the incident occurred in darkness and that the complainant’s face was covered, limiting her ability to identify the assailant. He further submitted that the complainant lost consciousness shortly after the incident and did not provide a description of the attacker at the earliest opportunity. He pointed out inconsistencies in the complainant’s testimony, including her assertion that she saw the perpetrator at the police station before his arrest. He also argued that no identification parade was conducted and that the identification was influenced by the police.
58. Finally, the Appellant submitted that the trial court failed to consider the least prescribed sentence and his constitutional rights under Articles 25(c), 50(2)(p), 27, 28 and 29 of the Constitution. He urged the court, in the alternative, to consider a reduced sentence and to take into account the period already spent in custody pursuant to Section 333(2) of the Criminal Procedure Code.
G. THE RESPONDENT’S SUBMISSIONS.
59. The State (the Respondent), in its written submissions, contended that the prosecution called seven witnesses who and that their evidence was consistent and sufficient to sustain the conviction. The Respondent further submitted that documentary and physical exhibits, including the phone receipt, treatment notes, P3 form and the recovered phone, were produced and collectively established ownership, corroborated the injuries sustained and linked the Appellant to the offence.
60. The Respondent submitted that during the trial the second accused died and the charge against him was lawfully withdrawn under Section 87(a) of the Criminal Procedure Code. The Respondent further noted that the trial court found that the Appellant had a case to answer, after which he gave sworn testimony in his defence without calling any witnesses, and was subsequently convicted and sentenced.
61. The Respondent identified five issues for determination, namely: whether the doctrine of recent possession was properly applied; whether the ingredients of robbery with violence were proved; whether the charge sheet was defective; whether identification evidence was sufficient; and whether the Appellant’s right to a fair trial was violated.
62. On the doctrine of recent possession, the Respondent submitted that the trial court properly applied the doctrine and that the circumstantial evidence was overwhelming. The state relied on the case of Chaama Hassan Hasa v Republic [1976] KLR 5, which set out the presumption arising from possession of recently stolen property. The Respondent further relied on the authority of Arum v Republic, Kisumu Criminal Appeal No. 85 of 2005, for the conditions necessary to invoke the doctrine, namely proof of possession, ownership, theft and recency. The Respondent argued that all these elements were satisfied in the present case.
63. The Respondent submitted that the stolen phone was recovered from the second accused on the same day it was stolen, thereby establishing recent possession and further argued that the complainant positively identified the phone in court and had earlier identified its receipt.
64. The state contended that the theft was proved through the complainant’s evidence describing the violent robbery, including the use of force and loss of consciousness.
65. The Respondent further submitted that the Appellant admitted to selling the phone to the second accused and led the police to its recovery and argued that this evidence was corroborated by multiple prosecution witnesses, including the arresting officers and the investigating officer. The Respondent placed reliance on the case of Paul Mwita Robi v Republic, Kisumu Criminal Appeal No. 200 of 2008, to submit that once possession of recently stolen property is established, the burden shifts to the accused to explain such possession, which the Appellant failed to do.
66. The Respondent dismissed the Appellant’s arguments regarding the receipt and discrepancies in value, submitting that the phone was sufficiently identified through its IMEI number and the Appellant’s own admissions.
67. On the ingredients of robbery with violence, the Respondent submitted that all elements under Section 296(2) of the Penal Code were proved beyond reasonable doubt. The Respondent argued that theft was established through the complainant’s testimony and the recovery of the stolen phone.
68. The state further submitted that violence was proved through the complainant’s account of being attacked, strangled and struck, which was corroborated by medical evidence. The Respondent relied on the medical evidence adduced by the clinician, who confirmed injuries consistent with harm caused by a blunt object and submitted that the use of a dangerous weapon was established through the complainant’s testimony regarding a panga, and that in any event, proof of actual violence alone was sufficient under Section 296(2).
69. The Respondent argued that the Appellant’s contention regarding non-production of medical documents was incorrect, as the P3 form and treatment notes were duly produced as exhibits.
70. On the alleged defective charge sheet, the Respondent submitted that the charge was properly framed and contained all essential particulars required under the law. The Respondent relied on the authority of Jason Akumu Yongo v Republic [1983] eKLR for the test of a defective charge and argued that the charge sheet in the present case met the required legal threshold.
71. The Respondent contended that the particulars of the charge, including the date, time, place and nature of the offence, were clearly stated and supported by the evidence on record and further submitted that any discrepancy in the value of the phone did not render the charge defective, as the phone was properly identified.
72. The Respondent argued that the joint nature of the charge was justified by the involvement of both accused persons
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