1. Charles Wankuru Boke, the appellant herein, was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. The particulars were that on the 23rd day of January 2020, at Sakuri village, Kuria East sub-county, in Migori County, jointly with others, not before the court, robbed Daudi Maroa of his motorcycle registration number KMEV 582T valued at Kshs. 115,373/=, and at or immediately before or immediately after the time of the said robbery, used violence against Daudi Maroa.
3. The appellant was sentenced to death. He was aggrieved and filed this appeal. He raised the following grounds of appeal:
a) That the trial learned magistrate erred in both law and fact by failing to consider that the ingredients forming the offence of robbery were not proved to the required standard.
b) That the trial learned magistrate erred in both law and fact by failing to consider the mitigating factors that called for leniency.
c) That the trial learned magistrate erred in both law and fact by failing to consider that the appellant was a first offender, remorseful and as such, for a non-custodial sentence.
d) That the trial learned magistrate erred in both law and fact in convicting the appellant based on presumptions without observing the evidence of the appellant that overwhelmed the prosecution's case.
e) That the trial learned magistrate erred in both law and fact by failing to note the inconsistencies and doubtful evidence, all pointing to a fabricated case.
4. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel. She contended that the prosecution proved the case to the required standards and that the sentence was appropriate.
5. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32
6. The ingredients of the offence of robbery under section 296 (2) of the Penal Code were enumerated by the Court of Appeal in Johana Ndungu vs Republic [1996] eKLR, when it stated as follows:
Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2), which we give below and any one of which, if proved, will constitute the offence under the sub-section:
1. If the offender is armed with any dangerous or offensive weapon or instrument, or
2. If he is in company with one or more other person or persons, or
3. If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.
7. These are the ingredients I will endeavour to establish if the prosecution proved any one set to the required standards.
8. The evidence of Francis Kerario Marwa (PW3) was that Daudi Maroa, the victim of the robbery, succumbed to the injuries sustained during the incident. Dr David Kemboi (PW5) performed the post-mortem on the deceased's body and formed the opinion that he died as a result of a blunt head injury.
9. I therefore find that one set of the ingredients of the offence of robbery with violence, contrary to section 296(2) of the Penal Code, was proven to the required standard.
10. The deceased was robbed on 23 January 2020 between 7 p.m. and 8 p.m. Later that day, around midnight, the deceased’s motorcycle was found at the appellant’s house. This was confirmed by witnesses Esther Wankuru (PW1) and Martha Gekonge (PW7), the appellant’s mother. She testified that the appellant’s house was locked, and police had to break in to recover the motorcycle. She also stated that the appellant lived alone in that house.
11. PC Nickson Kibet confirmed that they broke into the appellant's locked house and recovered the deceased's motorcycle. This was, therefore, an apt case to invoke the doctrine of recent possession. In the case of Isaac Ng'ang'a Kahiga, alias Peter Ng'ang'a Kahiga vs Republic, Criminal Appeal No. 82 of 2004, the principles of the doctrine of recent possession were laid out as follows:
... It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view, any discredited evidence on the same cannot suffice no matter from how many witnesses.
12. The only logical conclusion is that the appellant was the robber.
13. Having considered the foregoing analysis of the evidence on record, I find his appeal lacks merit and is therefore dismissed.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars were that on the 23rd day of January 2020, at Sakuri village, Kuria East sub-county, in Migori County, jointly with others, not before the court, robbed Daudi Maroa of his motorcycle registration number KMEV 582T valued at Kshs. 115,373/=, and at or immediately before or immediately after the time of the said robbery, used violence against Daudi Maroa.
3. The appellant was sentenced to death. He was aggrieved and filed this appeal. He raised the following grounds of appeal:
a) That the trial learned magistrate erred in both law and fact by failing to consider that the ingredients forming the offence of robbery were not proved to the required standard.
b) That the trial learned magistrate erred in both law and fact by failing to consider the mitigating factors that called for leniency.
c) That the trial learned magistrate erred in both law and fact by failing to consider that the appellant was a first offender, remorseful and as such, for a non-custodial sentence.
d) That the trial learned magistrate erred in both law and fact in convicting the appellant based on presumptions without observing the evidence of the appellant that overwhelmed the prosecution's case.
e) That the trial learned magistrate erred in both law and fact by failing to note the inconsistencies and doubtful evidence, all pointing to a fabricated case.
4. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel. She contended that the prosecution proved the case to the required standards and that the sentence was appropriate.
5. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32
6. The ingredients of the offence of robbery under section 296 (2) of the Penal Code were enumerated by the Court of Appeal in Johana Ndungu vs Republic [1996] eKLR, when it stated as follows:
Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2), which we give below and any one of which, if proved, will constitute the offence under the sub-section:
1. If the offender is armed with any dangerous or offensive weapon or instrument, or
2. If he is in company with one or more other person or persons, or
3. If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.
7. These are the ingredients I will endeavour to establish if the prosecution proved any one set to the required standards.
8. The evidence of Francis Kerario Marwa (PW3) was that Daudi Maroa, the victim of the robbery, succumbed to the injuries sustained during the incident. Dr David Kemboi (PW5) performed the post-mortem on the deceased's body and formed the opinion that he died as a result of a blunt head injury.
9. I therefore find that one set of the ingredients of the offence of robbery with violence, contrary to section 296(2) of the Penal Code, was proven to the required standard.
10. The deceased was robbed on 23 January 2020 between 7 p.m. and 8 p.m. Later that day, around midnight, the deceased’s motorcycle was found at the appellant’s house. This was confirmed by witnesses Esther Wankuru (PW1) and Martha Gekonge (PW7), the appellant’s mother. She testified that the appellant’s house was locked, and police had to break in to recover the motorcycle. She also stated that the appellant lived alone in that house.
11. PC Nickson Kibet confirmed that they broke into the appellant's locked house and recovered the deceased's motorcycle. This was, therefore, an apt case to invoke the doctrine of recent possession. In the case of Isaac Ng'ang'a Kahiga, alias Peter Ng'ang'a Kahiga vs Republic, Criminal Appeal No. 82 of 2004, the principles of the doctrine of recent possession were laid out as follows:
... It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view, any discredited evidence on the same cannot suffice no matter from how many witnesses.
12. The only logical conclusion is that the appellant was the robber.
13. Having considered the foregoing analysis of the evidence on record, I find his appeal lacks merit and is therefore dismissed.
Delivered and signed at Migori, this 23rd day of February 2026