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JudgmentCHARLES MACHARIA VS The Republic11 min read

CHARLES MACHARIA VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. S.K. Ngii (PM) in Siakago MCCR No. E408 of 2021 delivered on 29th May 2024)


  1. The appellant filed a petition of appeal dated 29th May 2024 seeking for orders that the appeal be allowed, the sentence be set aside and he be set at liberty. The appeal is premised on the following grounds:
    1. That the appellant’s constitutional rights were violated when he was held at the police station for more than 24 hours before he was arraigned in court to take plea;
    2. That the complainant failed to report to the police station immediately when the alleged incident occurred;
    3. That the complainant failed to describe the assailant when he first reported;
    4. That the complainant’s evidence was untruthful, contradictory and uncorroborated;
    5. That the evidence was marred with inconsistencies, doubts and contradictions’
    6. That the prosecution failed to conduct an identification parade on the appellant;
    7. That the complainant failed to prove the owner of the allegedly stolen mobile phone.
  2. The appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence are that on 13th June 2021 at Kanyuambora location in Mbeere North sub-county within Embu County, the appeallant, with others not before court, robbed Elizaphan Njoru Iguna of Kshs.21,540/=, and a techno mobile phone valued at Kshs.9,800/= and at the time of such robbery, beat the said Elizaphan Njoru Iguna.
  3. The appellant pleaded not guilty to this charge and the plea was duly entered before the matter went to full hearing.
  4. PW1 was the complainant who stated that he was heading home with his wife on a motor cycle when he noticed some people on 2 motor cycles trying to stop them. That he sped off but the people stopped them by knocking his motor cycle down. That they were 5 men and the appellant was their leader who demanded for his phone and money. That he gave them Kshs.500/= and they took his phone and then drove a nail through is leg and demanded for his phone password. That they took his wallet and took Kshs.21,000/= and then they hit him on the head until he passed out.
  5. He testified that he regained his consciousness at Precious hospital and then he was referred to Ishiara level 4 Hospital where he was treated. The following day, him and his wife reported the matter at Kanyuambora Police Station and they were given a P3 form which was filled at the hospital. He stated that the appellant knows him and even called him by his name when he was robbing him. On cross-examination, he stated that the appellant and his companions were armed with pieces of metal and that the receipt for the phone purchase was in the wallet which was stolen. That the appellant was not arrested with any of the stolen items but he tried to reach out to him for reconciliation but he refused. That the appellant is well known to him and he knew his voice when the appellant demanded for his phone.
  6. PW2 was Seferina Wanjira, the complainant’s wife, who stated that they had just sold tomatoes that day and when on the way home on a motor cycle they saw another motorcycle which rode close to them and the rider and the occupants ordered them to stop but they declined. That as they proceeded, they were intercepted by 2 other motor cycles. That the occupants of those other motor cycles took her husband and assaulted him and that is when she ran to a nearby house. She stated that she later received a call informing her that PW1 had been taken to hospital and when she went to see him the following morning, he had injuries on his head, hands, fingers and leg. That all the assorted foodstuffs they were carrying were stolen as well as Kshs.21,000/= which PW1 was carrying. She couldn’t identify the attackers that night but she said she had seen the accused person at the market before. On cross-examination, she stated that the owner of the house she took refuge at is not a witness in the case. That one of the motor cycles had 3 occupants while the other 2 had riders only.
  7. PW3 was Sgt. Simon Mwathe of Gachoka Police Station who stated that when the case was reported at Kanyuambora Police Station, it was minuted to him and he visited the scene where he found a crowd. That he cleared the crowd and found PW1 who told him that he had been attacked and robbed of some money and his phone. They escorted him to a private hospital for treatment since he had sustained some injuries. PW1 was later transferred to Ishiara Level 4 Hospital and he managed to name some of his attackers who were arrested. He stated that PW1 later reported the incident at the police station and he was issued with a P3 which was filled at the hospital.
  8. PW4 was Dr. Winnie Wambui who produced the P3 form issued to PW1. She testified that PW1 went to the hospital with torn and bloodstained clothes and he complained of injuries on his head, leg and knees. He was also bleeding from his nose and ear. He had cut wounds and bruises on different parts of his face, the right shoulder was swollen, the right hand had bruises and there was a wound and tenderness on his right foot. She observed that the wounds were caused by both sharp and blunt objects and PW1 was treated with analgesics, and antibiotics. She categorized the degree of injury as harm.
  9. At the close of the prosecution’s case, the court found that the appellant had a case to answer and thus placed him on his defense. 
  10. DW1 was the appellant who denied committing the offence and stated that the prosecution witnesses said that they did not see him that day. He said that he is a bodaboda rider and casual labourer with a wife and children in school. He urged the court to acquit him.
  11. After close of the defense case, the trial court considered the evidence and convicted the appellant, being satisfied that the elements of the offence were proved beyond reasonable doubt. The trial court relied on the Supreme Court case in Francis Karioko Muruatetu & Another v. Republic (2017) eKLR (Muruatetu 1) and departed from the mandatory prescribed death sentence and sentenced the appellant to 15 years imprisonment.
  12. This appeal was canvassed by way of written submissions.
  13. The appellant submitted that the complainant and his wife failed to properly identify him and the actual place where the alleged incident occurred. That the allegedly stolen items were not recovered from him and produced as evidence. He relied on the case of Wamunga v Republic [1989] KECA 47 (KLR) and argued that he was not properly identified as the perpetrator of the offence. He took issue with the fact that the prosecution failed to summon the owner of the house where PW2 took refuge as a witness. 
  14. On its part, the respondent relied on section 296(2) of the Penal Code and the case of Paul Njoroge Ndungu v. Republic [2021] KEHC 1052 (KLR) and Dima Denge Dima & Others v. Republic [2013] KECA 480 (KLR) for the elements of the offence of robbery with violence. It relied on the National Police Standing Orders and stated that an identification parade is only necessary when the identity of a suspect is unknown. That in this case, the appellant was identified by the complainant thus there was no need for an identification parade.
  15. Further reliance was placed on the cases of Philip Nzaka Watu v Republic [2016] KECA 696 (KLR) and John Nyaga Njuki & 4 others v. Republic [2002] KECA 288 (KLR) and argued that the discrepancies in the case are not detrimental to the case. It argued that the court should not interfere with the sentence imposed by the trial court since the trial court relied on legal principles in imposing the said sentence. It relied on the cases of Shadrack Kipkoech Kogo v. Republic, Eldoret Criminal Appeal No.253 of 2003 and Bernard Kimani Gacheru v. Republic [2002] KECA 94 (KLR).
  16. From the grounds of appeal and the submissions made, in my view, the issues for determination are as follows;
    1. Whether the offence was proved beyond reasonable doubt; and
    2. Whether the sentence meted out to the appellant should be reviewed.
  17. It is the role of this appellate court to re-examine the evidence to reach its finding. This was stated in the case of Kiilu & Another vs. Republic [2005]1 KLR 174, where the Court of Appeal held:

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

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

“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

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

“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.

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

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

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

iii.    The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person”

  1. If these elements are proved to the required standard, the appellant will be found culpable, given the wording of the relevant provision. This was the position of the court in the case of Dima Denge Dima & Others v  Republic [2013] KECA 480 (KLR) where the court stated:

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

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

  1. PW1 testified that on the night of the incident, he was riding a motor cycle on which he was carrying PW2 and some shopping. That another motorcycle tried to stop him but he fled. That he did not reach very far before he was intercepted by 2 other motor cycles and 5 people, led by the appellant, attacked him and demanded for his mobile phone and money. That he gave then Kshs.500/= and they drove a nail through his leg, beat him up and took his wallet which had Kshs.21,000/=.
  2. PW2 testified that when she saw PW1 being attacked, she ran away and went to a nearby farm where she took refuge at a certain person’s house. PW3 stated that the appellant was arrested after he was identified to him by PW1. He said that the stolen items were not recovered when the appellant was arrested. In his defense, the appellant denied committing the offence. From the totality of the evidence adduced, the appellant was the leader of the group that attacked him and he did not offer any defense but merely denied the allegations.
  3. The evidence on the identity of the appellant as one of the assailants remains overwhelming. The issue of failure to conduct an identification parade was not raised before the trial court but it has been raised on appeal. It is my view that an identification parade would have been necessary if PW1 was not sure who had attacked him. He said that the appellant was familiar to him since he used to see him at the market and he was very familiar with his voice.
  4. As to whether the sentence imposed by the trial court was fair, section 296(2) of the Penal Code prescribed the death penalty once the accused person is convicted. In fact, this sentence is intended to apply as is without any review once a person is found guilty of the offence since it is couched in mandatory terms. Clause 2.2.1 of the Sentencing guidelines 2023 still recognises the death penalty as a legal sentence in Kenya. The Court of Appeal in the case of Joseph Njuguna Mwaura & 2 others v Republic (2013) eKLR stated:

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

  1. Despite the foregoing, the trial magistrate relied on the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another v. Republic (2017) eKLR (Muruatetu 1) and sentenced the appellant to 15 years imprisonment. Given that the trial magistrate based his findings on legal principles, I find no basis to interfere with the sentence.
  2. In the end, I find that the appeal lack merit and it is hereby dismissed.
  3. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    CHARLES MACHARIA VS The Republic CHARLES MACHARIA VS The Republic