1. The Appellants herein were charged in the trial court, alongside three others, with four (4) counts of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, Cap 63 Laws of Kenya. The particulars of the charge were that the Accused persons, on 18th February 2018 in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed one JAMIN CHEBOR of an unknown amount of cash and, at the time of such robbery, killed the said JAMIN CHEBOR.
2. The particulars of the second count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed DAVID KIRUI of cash Kshs. 6,000/= and a wallet containing his documents, and at the time of such robbery killed the said DAVID KIRUI.
3. The particulars of the third count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed FREDRICK NASIMIYU of cash Kshs. 558/= and, at the time of such robbery, killed the said FREDRICK WASIMIYU.
4. The particulars of the fourth count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed VERONE ROTICH KIBOI of cash Kshs. 300/= and, at the time of such robbery, killed the said VERONE ROTICH KIBOI.
5. The accused persons were arraigned before the trial court, where they entered pleas and denied the charges in the three counts. A plea of not guilty was entered in response to each accused person’s plea, and the matter proceeded to a full trial. The Prosecution called the evidence of nine (9) witnesses in support of their case.
THE PROSECUTION’S CASE
6. PW1 (name not on record) testified that on 18th February 2018, while asleep at her house in the Sosio area with her husband, Fredrick Naibei, she heard three gunshots at midnight and then woke her husband. She stated that she heard someone running towards where they were, speaking in Kiswahili, and then they shouted, “Saulo”. She further testified that her husband asked whether the people were really police officers. Another person then asked her husband to wake up, and he responded, “Yes, sir”. He then dressed, and they told him to come outside with money. She further stated that the same voice that told her husband to open the door was the same voice that told him his witchcraft would come to an end. She further stated that when he opened the door, they shot him (her husband) in the arm, and he fell to the ground.
7. PW1 testified that the person who opened fire was standing at the door, carrying a gun, but she did not know the type of gun. She stated that he pointed the gun, and it hit her husband on the head while the other bullet went through his left cheek. She further stated that the man with the gun was a boda-boda rider on the Huruma Kipsigun route, known as Ngeiywo, whose father was known as Kiptai. She stated that she had known him for two years and pointed at him as the 2nd accused.
8. She further testified that their attackers came to where she was and asked her to remove all her charms/paraphernalia or risk being cut into pieces. She said there were five of them, but she could not identify them because they had covered their eyes. She also stated that they demanded money, and she gave them Kshs. 600/=. They also took her husband’s phone and identity card. They then asked her to cover his body and went to the kitchen, where they shone their torches, enabling her to identify the 1st accused, Chebarakach, from the bright torchlight. She further stated that the people were in her house for twenty minutes and that she did not know the 4th, 5th and 6th accused persons.
9. PW2 VK (name not on record) testified that on 18th February 2018, she was at home preparing dinner with her husband, Verone Rotich Kibor. They went to bed at 8.00 p.m., but at midnight he woke her, saying he could see a light from a torch. She stated that someone called her husband by his alias, “MAJENGO”, and asked him to open the door and go outside. She stated that her husband called them ‘officers’, but they said they were thugs and kicked the door open after hacking it. She stated that they fired shots at her husband’s head, and he fell and died. They then asked her for money and demanded any mobile phone. One of them then frisked her husband’s clothes and took a mobile phone.
10. It was PW2’s evidence that they also shot a cow with a gun and hacked four others with pangas, then told her to enter the house and raise an alarm. She testified that when they left, she went to her neighbour Cheburo’s house with her baby, explained what had happened, and that police officers came in the morning and took her deceased husband’s body away. She testified that she saw the people when they came to her house and was able to identify Ngeiywo as the one with the gun. She said she also identified Juma Taboi but could not identify the other suspect. She said Chebarakach was short and dark-skinned, not very dark, with a soft voice, while Ngeiywo was light-skinned, tall, with a deep voice.
11. She told the court that the suspects took a radio, a mobile phone, a solar panel and Kshs. 3,000/= from her husband and were armed with pangas and a gun. She said the incident took place at midnight and that they walked with a d-light, which was bright enough for her to see clearly. She stated that she knew the accused persons from before, as they used to pass through her piece of land.
12. PW3, SM (name not on record), testified that on 18th February 2018, at 10.00 p.m., she was at her house with her husband, Moi Burumbi, when she heard a gunshot. She stated that she kept quiet, heard an alarm from the neighbour’s house, Jamin Chebor, and then saw a torchlight at her door. She then heard a knock and someone shouting “fungua” (open). When she opened the door, she saw people who asked her where her husband was, but she kept quiet. She stated that they threatened to kill her, and then Ngeiywo asked her to keep quiet or else they would shoot her. She stated that he went inside with a bright torch, which lit the house, and announced his presence to his accomplices, whom he referred to as ‘officers’.
13. She testified that the said people shot her husband three times and hacked him with a panga on the head while the other suspect cut him into pieces. It was her evidence that she snuck away and hid in the maize plantation and afterwards, the men said they were headed to the home of Juma Jannah. This was about 1.00 am. when PW3 went back to the house and found her husband dead. That at 4.00 a.m. she raised an alarm and members of the public came. PW3 reiterated that she heard the men say that they were headed to the home of Jannan Kibor and that before they came to her house, they had come from the same home of Jannah Kibor and were going back to the same homestead. She said that that they were speaking in ‘ Kisabaot’ (Sabaot language).
14. PW3 said that Ngeiywo was black but not very dark, with a deep voice and that she also saw Cheparakach who was light-skinned, medium height. She stated that she went Kipsison Police Station where she made a report.
15. PW4 No. 216047, Assistant Superintendent of Police Kennedy Limera stated that he served as the DCIO for the Mount Elgon area for two years, during which there were several cases of robbery with murder organised by a criminal gang. He stated that, through intelligence reports, they learned that the 1st Accused and his brother, the 2nd Accused, were leading the criminal groups. He stated that the crimes were taking place within the Cheptais area and spilling over into the Kimilili area, Sirisia and Chwele, so they commenced investigations.
16. PW4 stated that they discovered other members of the gang had been recruited, with some of them living in Uganda, so they formed a multi-agency team to track them. They also declared a curfew within Cheptais sub-county, but the gangsters disappeared into Uganda. They then sent a team to Uganda, where they arrested the 3rd Accused, Alex Juma Taboi, alias Juma Taboi, because he had allegedly committed robberies in the Mount Elgon area. They went and picked him up from Swan Police Post in Uganda.
17. PW4 gave evidence that the 3rd Accused was brought to Mount Elgon for interrogation and then taken to the Senior Principal Magistrate’s Court at Kimilili, where his statement was recorded by the Multi Agency team. The others then began surrendering. He further gave evidence that Accused Nos. 4, 5 and 6 surrendered in separate places within Cheptais, after which they were interrogated by the DCIO Chaptais.
18. He further testified that the 1st Accused surrendered himself in Eldoret, was picked up by the Flying Squad, then escorted to Nairobi, where he was bonded at the ICD Internal Container Police Station.
19. PW4 said the 2nd Accused, Cleophas Ngeywo Kitai, surrendered at the Kericho police station and was escorted by Flying Squad Police Officers to Nairobi, where he was booked at the JKIA Police Station. PW4 and his counterpart, the DCIO in Cheptais, were summoned to Nairobi to assist in the investigations, where they found the suspects who had surrendered. Although they never met the two suspects, they were given their photographs at the briefing. He stated that they had compiled several files involving robberies and murders committed by the suspects.
20. PW4 continued to testify that on 17th May 2018 at 1420Hrs, he went to the Inland Port Police Station in Nairobi, where the 1st Accused had been detained. After introducing himself, he told the suspect that anything the suspect said could be used in a court of law. He said they spoke on friendly terms, and the suspect explained the reason for his surrender. He also stated that he allowed the suspect to choose the language to be used, and then recorded the information. He later read it to the suspect and invited him to sign the statement, but the suspect changed his mind and declined to sign, stating that what he had said was what he knew. PW4 produced the statement (P.Exh1), which was recorded on 17th May 2018 at 1429Hrs at the Inland Port Police Station.
21. PW4 stated that on 20th May 2018 at 1030Hrs, he proceeded to JKIA Police Station, where the 2nd Accused, Cleophas Ngeywo Kitao, was detained. After introducing himself, he interviewed him and invited him to record a statement. He gave him the same caution that the statement could be used as evidence in a court of law, and that they spoke in Kiswahili, which he reduced to English. He asked the suspect whether he was under any duress, and the suspect confirmed that he had offered to give his statement voluntarily. He reduced this into writing and invited him to sign the same. PW4 produced the statement as P.Exh2. He added that the statements involved robberies and murders that had occurred within the Mount Elgon region between 29th June 2017 and 22nd February 2018, in which the two accused persons were involved.
22. PW5 Dickson Onyango, a Chief Magistrate at Kimilili Law Courts, identified the statements made on 12th March 2018, which he wrote after explaining to Alex, the 3rd Accused, that the statements were necessitated by the investigations being conducted by the police in respect of a robbery with violence case which occurred at Kashok sub-location in Namorio sub-location in Mount Elgon.
23. PW5 stated that it was alleged that the accused, while in the company of others, robbed one Silas Chemoge Bolyan, who was fatally shot. He then explained to the suspect that the police had information that would assist their investigations and asked whether the suspect had anything to state, cautioning him that he was obliged to remain silent and that anything said could be recorded and used against him in a court of law. PW5 also asked the suspect whether he wished to have a representative, and he requested that one of their staff members, William Lupomoi, be present when he narrated what happened in February 2018.
24. PW5 continued to testify that he reduced the suspect’s narrative to writing and that the suspect thumb-printed each page of what was recorded, and that he was not under duress or compulsion, and PW5 produced the same as P.Exh2.
25. PW6 Dr. Aaron Obongi testified that he was attached to the Bungoma Referral Hospital, held a Bachelor of Medicine degree from the Karanzen University in Ukraine (registration No. A8607), and had the post-mortem reports of Jamin Chebor Vincent, David Kirui Birobi, Fredrick Yembor and Vintone Rotich Kiboi.
26. He stated that the post-mortem examination for Jamin Cheboi occurred on 2 nd March 2018 where he found from the external appearance that the head had been decapitated with deep cut wounds on the right upper limb, shoulder at the writs joints measuring 5x10 cms; a cut wound on the left foot, a fractured ankle joint and multiple cuts on his back. On his internal appearance, there was decapitation, the respiratory system was totally punctured leading to lung collapse, with an injury to the neck vessels due to the decapitation. He stated that the cause of death was multiple head injury which was secondary to multiple cut wounds. He signed the report on 2 nd March 2018 and produced it as P.Exh4.
27. PW6 conducted a post-mortem on David Kirui Birobi on 2nd March 2018. He noted multiple facial injuries secondary to cut wounds and a fracture of the parietal lobe region. He also noted fractures of the left femur, tibia and fibula, with cut wounds, and a bullet in the left shoulder region, which was the entry point, exiting at the lumbar region (back). On internal examination, he observed that the penetrating bullet had passed through the left lung, leading to massive haemothorax, and that there were multiple skull fractures. He concluded that the cause of death was severe head injury and produced the report, which he signed on the same day as P.Exh5.
28. PW6 conducted the post-mortem on Vintone Rotich Kiboi, who had deep cut wounds to the posterior neck and a clavicular fracture extending to the distal left arm. Internally, there was a deep cut wound affecting the spine and compressing the spinal cord. He stated that the cause of death was severe head injury with neurogenic shock secondary to assault. He signed the report dated 2nd March 2018 and produced it into evidence as P.Exh6.
29. PW6 stated that his colleague, Wafula, who was away pursuing a master’s degree at Moi Teaching and Referral Hospital, completed the 4th Report in respect of Fredrick Chembien on 27th February 2018. He confirmed that he was familiar with Dr. Wafula’s handwriting and signature, and testified that the external findings included a wound on the posterior aspect of the right cheek, an exit wound on the right side of the chest, and a swollen scrotum. From the internal appearance, they observed a perforated liver, a right-sided haemothorax, and multiple fractures of the scalp. He further testified that the cause of death was severe head injury with multiple organ injury secondary to a bullet wound involving the head, abdomen and thorax. He produced the report P.Exh 8 (there is no P.Exh 7).
30. PW7 No. 76900 PC Nelson Ratemo testified that he was attached to the Kimilili DCIO’s office, performing general duties, and that in August they were informed through their intelligence of several robbery reports within Bungoma County, with the perpetrators in possession of an AK47 rifle. He stated that they intensified their patrols and, on 10th August 2018 at around 2000hrs, while on patrol along Kimilili Chesamis road, they encountered 4 thugs on a motor bike. They asked the thugs to stop, but the thugs continued towards them. Three of them were fatally injured, and an AK47 rifle, Serial No. UG09441999, a heavy hammer, and 56 live ammunition with all spent cartridges were recovered from the scene.
31. PW7 stated that he took the rifle and spent cartridges for ballistic examination, as per his Exhibit Memo dated 15th August 2018, and later collected the results, which indicated that the AK 47 rifle had been used to commit several offences since 2018 within Bungoma, as demonstrated by the report dated 28th August 2018. He stated that the rifle was listed in a case before the court, as per the Ballistic Report Serial No. 16 DCI Cheptais Police Serial No. 91A/24/2018. He produced the rifle as (P.Exh 8a) and the two magazines (P.Exh 8b).
32. PW7 also testified that there were a heavy hammer and cartridges before the courts in Sirisia, together with live ammunition. He stated that he presented the exhibit Memo to the Ballistic Examiner at the CID Headquarters in Nairobi and received a report dated 23rd August 2018. The Memo Form and the report were produced as P.Exh 9.
33. PW8 No. 236353, APC Abdi Jillo, attached to the Kanduyi Police Division Headquarters in Bungoma South, testified that on 9th March 2018 at around 0600Hrs, while on patrol within Bungoma town, they received a phone call from their Chief Whip, Gabriel Masiga, informing them that he had received a call from a Border Intelligence Security Officer from Uganda, who told him that they had arrested one suspect, namely Alex Juma Jamin Taboi. He stated that they received this report from the Kenya Government Security Officers through coordination of the two governments (Kenya and Uganda), which revealed the hideout of the criminals who were killing and terrorising people in the Mount Elgon region.
34. He stated that they arrested the 3rd Accused, Alex Juma Taboi, who was detained at the Bukwa Police Station in Uganda. That the 3rd Accused was handed over to them by the Immigration Officer, and they later escorted him to the Mbale Police Station in Vihiga County. PW8 stated that they received the suspect from the Uganda Police Station, and he communicated with the DCIO Mount Elgon for further investigations.
35. PW9 No. 228069, APC Stevon Etugu, stationed at the Bungoma Sub-County Headquarters in Bungoma, testified that he performed intelligence operations duties. On 9th March 2018 at around 0600Hrs, while on Mobile Patrol duties within Bungoma Township with his colleagues, Corporal Kisarom, APCs Abdi and Odera, they were informed by their boss, Chief Inspector Gabriel Maasai, that he had received information from the Border Intelligence Security of Uganda that they had arrested the 3rd Accused, Alex Juma, who was suspected to be one of the criminals terrorising members of the public in the Mount Elgon area. PW9 stated that the said accused was booked at the Bukwa Police Station in Uganda, from where they picked him, after passing through the Shaam Border Post.
36. PW9 testified that members of the public at the border were baying for his blood, so they were ordered by their bosses to escort him to Mbale Police Station in Vihiga County for security reasons. He was booked there for further investigation.
37. At the close of the Prosecution’s case, the trial court found that the six accused persons had a case to answer, placed them on their defence, and they all elected to tender sworn evidence without calling witnesses.
THE DEFENCE CASE
38. Since the Appeal concerns the 1st, 2nd and 3rd Accused persons, who are the 3rd Appellant, 2nd Appellant and 1st Appellant, respectively, in this appeal, I will set out only their defence.
39. The 1st Accused person/3rd Appellant, Timothy Kiptanui Kimutai, testified that he hailed from Chemandai Bargotiny sub-location in Kpasaro Chepkis sub-county. He further stated that he was a farmer and a businessman, and that he knew Justine Chebot as a fellow farmer. He stated that on 18th February 2018, at night, he was at his home in the company of his family, and on 1st February 2018 he was informed of a robbery that had taken place in a neighbouring village, so he visited the scene. He stated that he assisted in carrying the deceased’s body into the police vehicle and that, with the police officers, they felt the thugs would return. He further stated that they were later arrested after he had been mentioned adversely, but he denied committing the offence.
40. The 2nd Accused/Appellant, Cleophas Ngeywo Kinai, testified that he was from Cherwalany village in Ongotil sub-location, and that he was a farmer and a boda-boda rider. He stated that on 1st February 2015, he was at home with his wife at night and that he knew Jamiar Chebon, whom he used to carry on his motorcycle. He stated that he went to Koponga, and after dropping his passengers, police officers suddenly arrested him and took him to Serian. He stated that the GSU police officers came to where he was, arrested him for half an hour, and then asked him to carry the body to where the police vehicle was. He testified that he was later asked to go to the police station, where he was paid, and that on 6th March 2022 he was arrested by police officers when his name was mentioned adversely. He denied committing the offence.
41. The 3rd Accused/1st Appellant, Alex Savina Taro, testified that he was from Sereto village, Kubra sub-location, Chebuyu location, in Kipsirio division. He stated that he was a farmer who kept livestock and denied knowing Jamiar Chebon. He further testified that on 18th February 2018 he was at his home with his wife, and on 17th September 2018 he was at his 1st wife’s home, by the name Evelyne Temula Massau. He stated that his 2nd wife is Violet Chepkemoi Sude. He further stated that they went to Bakwa in Uganda, where they had been summoned, met police officers from Kenya, and that he was arrested and has remained in custody to date.
42. At the end of the trial, the 4th, 5th and 6th Accused, namely Robin Jikwicha, Aaron Kimutai Sichak and Samuel Kipsang, were acquitted of the four counts of robbery with violence, but the 1st, 2nd and 3rd Accused, namely Timothy Kiptanui (3rd Appellant/DW4), Cleophas Ngeiywo (2nd Accused/DW2) and Alex Juma Taboi (1st Appellant/DW6), were convicted of the four counts of robbery with violence. The trial court sentenced each of them to death by hanging on each count, but kept counts 2 to 4 in abeyance pending execution of count 1.
THE APPEAL
43. Aggrieved by this decision, the Appellants filed a Petition of Appeal on 28 th November 2022 against both conviction and sentence, in which they raised six grounds of appeal. Subsequently, they filed a joint amended grounds of appeal on 23 rd April 2025 raising eight grounds against the sentence and conviction, then later filed another amended homemade Grounds of Appeal reproduced below as follows: -
(1) THAT, the learned trial magistrate court faulted in the points of law and facts by relying on Extra Judicial Confession to convict appellants herein in all 4 (four) counts without corroboration of any other evidence. And also erred in law by failing to note that, extrajudicial confession was declared unlawful by the Court of Appeal at Nairobi. The confession statements were also contrary to section 25(a) cite in KANINI MULI-VS-REP. CR. APPEAL NO. 233 OF 2007 AT NAIROBI COURT OF APPEAL (supra) JUDGMENT DELIVERED DATED 24TH DAY OF JANUARY 2014. Coram. KIHARA KARIUKI, PCA, MUSINGA & MINOTI. J.J.A. Thus, this hon. Court be pleased to allow this appeal in its totality by setting appellants at liberty.
(2) THAT, the learned trial magistrate court erred in the points of law and fact by convicting and sentencing the appellants herein in all four (4) counts without observing that the prosecution failed to prove beyond reasonable doubt that appellants herein are guilty in those counts.
(3) THAT, the learned trial magistrate erred in points of law and facts by failing to observe that identification through recognition in all 4 counts failed when PW1 and PW 2 plus also PW3 failed to properly mention the names of the Appellants herein at the time when they were reporting their first report. Reference is made in Tanzanian case law of MARWA WANGITI MWITA AND ANOTHER-VS- REP. CR. APPEAL NO. 6 OF 1995 (unreported) but framed somehow differently, the court stated: "the ability of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay of complete failure to do so should put a prudent court to enquiry." See also in our Kenyan jurisprudence in: ALEX WENUA CHITUNO-VS- REPUBLIC, CR. APPEAL NO. 97 OF 2020 (2023) EKLR. (CORAM: MURGOR, KAN ΤΑΙ & NGENYE-MACHARIA, J.J.A)
(4) THAT, the learned trial magistrate court erred in the points of law and facts by failing to note that, the entire trial was mistrial and unfair when the trial court denied appellants herein a right to cross-examine PW1, PW2 and PW3. This was contrary to the Criminal Procedure Code Cap 75 Laws of Kenya. See BUKENYA AND OTHERS -VS- UGANDA (SUPRA) current section 150 of the C.P.C. Thus, this Hon. Court be pleased to allow these appeals by setting aside death penalty imposed on all four counts, quash, conviction therein and proceed to set us at liberty.
(5) THAT, the court below erred in the points of law by failing to properly evaluate the entire prosecution evidence. Cite MOHAMMED WEKESA MUSUMBA V.R (2010) eKLR.
(6) THAT, the learned trial magistrate court erred in the points of law and facts by convicting and sentencing the appellants herein death penalty in 4 counts without observing that, the prosecution evidence inconsistent and contradictory.
(7) THAT, the learned trial magistrate court erred in the points of law and facts by failing to note that, the prosecution case was not proved beyond reasonable doubt as it was stated in REPUBLIC-VS- LIFCHUS (1997) 3 SCR 320 para. 5 in the Supreme Court of Canada. Thus, this Hon. Court be pleased to construe the benefits of doubts observed in the prosecution case as discussed herein above and proceed to set us at liberty unless otherwise lawfully detained.
(8) THAT the learned Magistrate erred in points of law and facts by failing to invoke the jurisdiction of Section 200 (3) of the Criminal Procedure Code, Cap 75 Laws of Kenya, PW1, PW2 and PW3 were proceeded before the coram of Hon. C.A.S. Mutai (SPM) while PW4 No. 216047 ASP Kennedy Limetra and Dr. Obongi attached to Bungoma Referral Hospital who produced the post-mortem report were heard by Hon. J. King’ori (CM) dated 21/05/2019 see page 36-50. Thus this honourable court be pleased to set the Appellants herein at liberty.
44. The Appeal was canvass it by written submissions.
THE SUBMISSIONS
45. The Appellants filed joint submissions in which they alleged that they were tortured at various police stations to extract confessions, which they vehemently deny. They argue that the confessions violate Sections 25(a) and 26 of the Evidence Act Cap 80 and Articles 49(1) and 50(1) of the Constitution, as they were made without the presence of a chosen third party, adequate language assistance, or safeguards against self-incrimination. They cited the cases of Rex v Nnata s/o Mdimi (1944-1946) EA 83 and Nayinda s/o Batungwa v R (1959) EA 688, in which the court treated the confessions adduced into evidence as extrajudicial confessions. They also cited the case of Kanini Muli v R.
46. The Appellants submitted that the Prosecution’s case was marred by inconsistencies and contradictions. They stated that PW4, the Investigating Officer, gave conflicting testimony across different criminal cases, including Criminal Case No. 745 of 2018 at the Bungoma CM’s Court, on whether the 3rd Appellant actually confessed or refused to record a statement. They also pointed out that the Chief Magistrate (PW5) recorded a statement that referenced an entirely different complainant, Silas Chemoge, and different locations for the commission of the offence, which did not match the actual charges in this case and the alleged complainants, namely Jamin Chebor, David Kirui, Fredrick Nasimiyu and Verone Rotich Kiboi, in Chepkurkur. They urged the Court to dismiss the 2nd Appellant’s confession.
47. It was their submission that the Prosecution failed to prove the four (4) counts beyond reasonable doubt. In particular, under count 1, it was submitted that there were no eyewitnesses. The primary witness, PW3, was not at the scene during the incident and failed to name or provide accurate descriptions of the Appellants in the initial police report recorded in the Occurrence Book/OB entry.
48. On count 2, the Appellants submitted that there were serious material contradictions between the witness testimony and the charge sheet. PW1 named her deceased husband as Fredrick Naibei Chembenti and stated that Kshs. 600 was stolen, whereas the charge sheet lists the deceased as David Kirui and the stolen amount as Kshs. 6,000/=. On count 3, the Appellants point out that the Prosecution failed to present a single witness or provide any legal basis for this charge. Lastly, on count 4, the identification evidence by PW2 was unreliable, uncorroborated, and lacked vital descriptions in the initial report. They relied on the cases of Alex Weinua Chetumo v Republic and Maitanyi v R (1986) eKLR on the issue of identification.
49. The Appellants argue that the purported identification by PW1, PW2, and PW3 did not meet the legal threshold for recognition, as none of the witnesses mentioned the Appellants' names
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2. The particulars of the second count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed DAVID KIRUI of cash Kshs. 6,000/= and a wallet containing his documents, and at the time of such robbery killed the said DAVID KIRUI.
3. The particulars of the third count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed FREDRICK NASIMIYU of cash Kshs. 558/= and, at the time of such robbery, killed the said FREDRICK WASIMIYU.
4. The particulars of the fourth count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed VERONE ROTICH KIBOI of cash Kshs. 300/= and, at the time of such robbery, killed the said VERONE ROTICH KIBOI.
5. The accused persons were arraigned before the trial court, where they entered pleas and denied the charges in the three counts. A plea of not guilty was entered in response to each accused person’s plea, and the matter proceeded to a full trial. The Prosecution called the evidence of nine (9) witnesses in support of their case.
THE PROSECUTION’S CASE
6. PW1 (name not on record) testified that on 18th February 2018, while asleep at her house in the Sosio area with her husband, Fredrick Naibei, she heard three gunshots at midnight and then woke her husband. She stated that she heard someone running towards where they were, speaking in Kiswahili, and then they shouted, “Saulo”. She further testified that her husband asked whether the people were really police officers. Another person then asked her husband to wake up, and he responded, “Yes, sir”. He then dressed, and they told him to come outside with money. She further stated that the same voice that told her husband to open the door was the same voice that told him his witchcraft would come to an end. She further stated that when he opened the door, they shot him (her husband) in the arm, and he fell to the ground.
7. PW1 testified that the person who opened fire was standing at the door, carrying a gun, but she did not know the type of gun. She stated that he pointed the gun, and it hit her husband on the head while the other bullet went through his left cheek. She further stated that the man with the gun was a boda-boda rider on the Huruma Kipsigun route, known as Ngeiywo, whose father was known as Kiptai. She stated that she had known him for two years and pointed at him as the 2nd accused.
8. She further testified that their attackers came to where she was and asked her to remove all her charms/paraphernalia or risk being cut into pieces. She said there were five of them, but she could not identify them because they had covered their eyes. She also stated that they demanded money, and she gave them Kshs. 600/=. They also took her husband’s phone and identity card. They then asked her to cover his body and went to the kitchen, where they shone their torches, enabling her to identify the 1st accused, Chebarakach, from the bright torchlight. She further stated that the people were in her house for twenty minutes and that she did not know the 4th, 5th and 6th accused persons.
9. PW2 VK (name not on record) testified that on 18th February 2018, she was at home preparing dinner with her husband, Verone Rotich Kibor. They went to bed at 8.00 p.m., but at midnight he woke her, saying he could see a light from a torch. She stated that someone called her husband by his alias, “MAJENGO”, and asked him to open the door and go outside. She stated that her husband called them ‘officers’, but they said they were thugs and kicked the door open after hacking it. She stated that they fired shots at her husband’s head, and he fell and died. They then asked her for money and demanded any mobile phone. One of them then frisked her husband’s clothes and took a mobile phone.
10. It was PW2’s evidence that they also shot a cow with a gun and hacked four others with pangas, then told her to enter the house and raise an alarm. She testified that when they left, she went to her neighbour Cheburo’s house with her baby, explained what had happened, and that police officers came in the morning and took her deceased husband’s body away. She testified that she saw the people when they came to her house and was able to identify Ngeiywo as the one with the gun. She said she also identified Juma Taboi but could not identify the other suspect. She said Chebarakach was short and dark-skinned, not very dark, with a soft voice, while Ngeiywo was light-skinned, tall, with a deep voice.
11. She told the court that the suspects took a radio, a mobile phone, a solar panel and Kshs. 3,000/= from her husband and were armed with pangas and a gun. She said the incident took place at midnight and that they walked with a d-light, which was bright enough for her to see clearly. She stated that she knew the accused persons from before, as they used to pass through her piece of land.
12. PW3, SM (name not on record), testified that on 18th February 2018, at 10.00 p.m., she was at her house with her husband, Moi Burumbi, when she heard a gunshot. She stated that she kept quiet, heard an alarm from the neighbour’s house, Jamin Chebor, and then saw a torchlight at her door. She then heard a knock and someone shouting “fungua” (open). When she opened the door, she saw people who asked her where her husband was, but she kept quiet. She stated that they threatened to kill her, and then Ngeiywo asked her to keep quiet or else they would shoot her. She stated that he went inside with a bright torch, which lit the house, and announced his presence to his accomplices, whom he referred to as ‘officers’.
13. She testified that the said people shot her husband three times and hacked him with a panga on the head while the other suspect cut him into pieces. It was her evidence that she snuck away and hid in the maize plantation and afterwards, the men said they were headed to the home of Juma Jannah. This was about 1.00 am. when PW3 went back to the house and found her husband dead. That at 4.00 a.m. she raised an alarm and members of the public came. PW3 reiterated that she heard the men say that they were headed to the home of Jannan Kibor and that before they came to her house, they had come from the same home of Jannah Kibor and were going back to the same homestead. She said that that they were speaking in ‘ Kisabaot’ (Sabaot language).
14. PW3 said that Ngeiywo was black but not very dark, with a deep voice and that she also saw Cheparakach who was light-skinned, medium height. She stated that she went Kipsison Police Station where she made a report.
15. PW4 No. 216047, Assistant Superintendent of Police Kennedy Limera stated that he served as the DCIO for the Mount Elgon area for two years, during which there were several cases of robbery with murder organised by a criminal gang. He stated that, through intelligence reports, they learned that the 1st Accused and his brother, the 2nd Accused, were leading the criminal groups. He stated that the crimes were taking place within the Cheptais area and spilling over into the Kimilili area, Sirisia and Chwele, so they commenced investigations.
16. PW4 stated that they discovered other members of the gang had been recruited, with some of them living in Uganda, so they formed a multi-agency team to track them. They also declared a curfew within Cheptais sub-county, but the gangsters disappeared into Uganda. They then sent a team to Uganda, where they arrested the 3rd Accused, Alex Juma Taboi, alias Juma Taboi, because he had allegedly committed robberies in the Mount Elgon area. They went and picked him up from Swan Police Post in Uganda.
17. PW4 gave evidence that the 3rd Accused was brought to Mount Elgon for interrogation and then taken to the Senior Principal Magistrate’s Court at Kimilili, where his statement was recorded by the Multi Agency team. The others then began surrendering. He further gave evidence that Accused Nos. 4, 5 and 6 surrendered in separate places within Cheptais, after which they were interrogated by the DCIO Chaptais.
18. He further testified that the 1st Accused surrendered himself in Eldoret, was picked up by the Flying Squad, then escorted to Nairobi, where he was bonded at the ICD Internal Container Police Station.
19. PW4 said the 2nd Accused, Cleophas Ngeywo Kitai, surrendered at the Kericho police station and was escorted by Flying Squad Police Officers to Nairobi, where he was booked at the JKIA Police Station. PW4 and his counterpart, the DCIO in Cheptais, were summoned to Nairobi to assist in the investigations, where they found the suspects who had surrendered. Although they never met the two suspects, they were given their photographs at the briefing. He stated that they had compiled several files involving robberies and murders committed by the suspects.
20. PW4 continued to testify that on 17th May 2018 at 1420Hrs, he went to the Inland Port Police Station in Nairobi, where the 1st Accused had been detained. After introducing himself, he told the suspect that anything the suspect said could be used in a court of law. He said they spoke on friendly terms, and the suspect explained the reason for his surrender. He also stated that he allowed the suspect to choose the language to be used, and then recorded the information. He later read it to the suspect and invited him to sign the statement, but the suspect changed his mind and declined to sign, stating that what he had said was what he knew. PW4 produced the statement (P.Exh1), which was recorded on 17th May 2018 at 1429Hrs at the Inland Port Police Station.
21. PW4 stated that on 20th May 2018 at 1030Hrs, he proceeded to JKIA Police Station, where the 2nd Accused, Cleophas Ngeywo Kitao, was detained. After introducing himself, he interviewed him and invited him to record a statement. He gave him the same caution that the statement could be used as evidence in a court of law, and that they spoke in Kiswahili, which he reduced to English. He asked the suspect whether he was under any duress, and the suspect confirmed that he had offered to give his statement voluntarily. He reduced this into writing and invited him to sign the same. PW4 produced the statement as P.Exh2. He added that the statements involved robberies and murders that had occurred within the Mount Elgon region between 29th June 2017 and 22nd February 2018, in which the two accused persons were involved.
22. PW5 Dickson Onyango, a Chief Magistrate at Kimilili Law Courts, identified the statements made on 12th March 2018, which he wrote after explaining to Alex, the 3rd Accused, that the statements were necessitated by the investigations being conducted by the police in respect of a robbery with violence case which occurred at Kashok sub-location in Namorio sub-location in Mount Elgon.
23. PW5 stated that it was alleged that the accused, while in the company of others, robbed one Silas Chemoge Bolyan, who was fatally shot. He then explained to the suspect that the police had information that would assist their investigations and asked whether the suspect had anything to state, cautioning him that he was obliged to remain silent and that anything said could be recorded and used against him in a court of law. PW5 also asked the suspect whether he wished to have a representative, and he requested that one of their staff members, William Lupomoi, be present when he narrated what happened in February 2018.
24. PW5 continued to testify that he reduced the suspect’s narrative to writing and that the suspect thumb-printed each page of what was recorded, and that he was not under duress or compulsion, and PW5 produced the same as P.Exh2.
25. PW6 Dr. Aaron Obongi testified that he was attached to the Bungoma Referral Hospital, held a Bachelor of Medicine degree from the Karanzen University in Ukraine (registration No. A8607), and had the post-mortem reports of Jamin Chebor Vincent, David Kirui Birobi, Fredrick Yembor and Vintone Rotich Kiboi.
26. He stated that the post-mortem examination for Jamin Cheboi occurred on 2 nd March 2018 where he found from the external appearance that the head had been decapitated with deep cut wounds on the right upper limb, shoulder at the writs joints measuring 5x10 cms; a cut wound on the left foot, a fractured ankle joint and multiple cuts on his back. On his internal appearance, there was decapitation, the respiratory system was totally punctured leading to lung collapse, with an injury to the neck vessels due to the decapitation. He stated that the cause of death was multiple head injury which was secondary to multiple cut wounds. He signed the report on 2 nd March 2018 and produced it as P.Exh4.
27. PW6 conducted a post-mortem on David Kirui Birobi on 2nd March 2018. He noted multiple facial injuries secondary to cut wounds and a fracture of the parietal lobe region. He also noted fractures of the left femur, tibia and fibula, with cut wounds, and a bullet in the left shoulder region, which was the entry point, exiting at the lumbar region (back). On internal examination, he observed that the penetrating bullet had passed through the left lung, leading to massive haemothorax, and that there were multiple skull fractures. He concluded that the cause of death was severe head injury and produced the report, which he signed on the same day as P.Exh5.
28. PW6 conducted the post-mortem on Vintone Rotich Kiboi, who had deep cut wounds to the posterior neck and a clavicular fracture extending to the distal left arm. Internally, there was a deep cut wound affecting the spine and compressing the spinal cord. He stated that the cause of death was severe head injury with neurogenic shock secondary to assault. He signed the report dated 2nd March 2018 and produced it into evidence as P.Exh6.
29. PW6 stated that his colleague, Wafula, who was away pursuing a master’s degree at Moi Teaching and Referral Hospital, completed the 4th Report in respect of Fredrick Chembien on 27th February 2018. He confirmed that he was familiar with Dr. Wafula’s handwriting and signature, and testified that the external findings included a wound on the posterior aspect of the right cheek, an exit wound on the right side of the chest, and a swollen scrotum. From the internal appearance, they observed a perforated liver, a right-sided haemothorax, and multiple fractures of the scalp. He further testified that the cause of death was severe head injury with multiple organ injury secondary to a bullet wound involving the head, abdomen and thorax. He produced the report P.Exh 8 (there is no P.Exh 7).
30. PW7 No. 76900 PC Nelson Ratemo testified that he was attached to the Kimilili DCIO’s office, performing general duties, and that in August they were informed through their intelligence of several robbery reports within Bungoma County, with the perpetrators in possession of an AK47 rifle. He stated that they intensified their patrols and, on 10th August 2018 at around 2000hrs, while on patrol along Kimilili Chesamis road, they encountered 4 thugs on a motor bike. They asked the thugs to stop, but the thugs continued towards them. Three of them were fatally injured, and an AK47 rifle, Serial No. UG09441999, a heavy hammer, and 56 live ammunition with all spent cartridges were recovered from the scene.
31. PW7 stated that he took the rifle and spent cartridges for ballistic examination, as per his Exhibit Memo dated 15th August 2018, and later collected the results, which indicated that the AK 47 rifle had been used to commit several offences since 2018 within Bungoma, as demonstrated by the report dated 28th August 2018. He stated that the rifle was listed in a case before the court, as per the Ballistic Report Serial No. 16 DCI Cheptais Police Serial No. 91A/24/2018. He produced the rifle as (P.Exh 8a) and the two magazines (P.Exh 8b).
32. PW7 also testified that there were a heavy hammer and cartridges before the courts in Sirisia, together with live ammunition. He stated that he presented the exhibit Memo to the Ballistic Examiner at the CID Headquarters in Nairobi and received a report dated 23rd August 2018. The Memo Form and the report were produced as P.Exh 9.
33. PW8 No. 236353, APC Abdi Jillo, attached to the Kanduyi Police Division Headquarters in Bungoma South, testified that on 9th March 2018 at around 0600Hrs, while on patrol within Bungoma town, they received a phone call from their Chief Whip, Gabriel Masiga, informing them that he had received a call from a Border Intelligence Security Officer from Uganda, who told him that they had arrested one suspect, namely Alex Juma Jamin Taboi. He stated that they received this report from the Kenya Government Security Officers through coordination of the two governments (Kenya and Uganda), which revealed the hideout of the criminals who were killing and terrorising people in the Mount Elgon region.
34. He stated that they arrested the 3rd Accused, Alex Juma Taboi, who was detained at the Bukwa Police Station in Uganda. That the 3rd Accused was handed over to them by the Immigration Officer, and they later escorted him to the Mbale Police Station in Vihiga County. PW8 stated that they received the suspect from the Uganda Police Station, and he communicated with the DCIO Mount Elgon for further investigations.
35. PW9 No. 228069, APC Stevon Etugu, stationed at the Bungoma Sub-County Headquarters in Bungoma, testified that he performed intelligence operations duties. On 9th March 2018 at around 0600Hrs, while on Mobile Patrol duties within Bungoma Township with his colleagues, Corporal Kisarom, APCs Abdi and Odera, they were informed by their boss, Chief Inspector Gabriel Maasai, that he had received information from the Border Intelligence Security of Uganda that they had arrested the 3rd Accused, Alex Juma, who was suspected to be one of the criminals terrorising members of the public in the Mount Elgon area. PW9 stated that the said accused was booked at the Bukwa Police Station in Uganda, from where they picked him, after passing through the Shaam Border Post.
36. PW9 testified that members of the public at the border were baying for his blood, so they were ordered by their bosses to escort him to Mbale Police Station in Vihiga County for security reasons. He was booked there for further investigation.
37. At the close of the Prosecution’s case, the trial court found that the six accused persons had a case to answer, placed them on their defence, and they all elected to tender sworn evidence without calling witnesses.
THE DEFENCE CASE
38. Since the Appeal concerns the 1st, 2nd and 3rd Accused persons, who are the 3rd Appellant, 2nd Appellant and 1st Appellant, respectively, in this appeal, I will set out only their defence.
39. The 1st Accused person/3rd Appellant, Timothy Kiptanui Kimutai, testified that he hailed from Chemandai Bargotiny sub-location in Kpasaro Chepkis sub-county. He further stated that he was a farmer and a businessman, and that he knew Justine Chebot as a fellow farmer. He stated that on 18th February 2018, at night, he was at his home in the company of his family, and on 1st February 2018 he was informed of a robbery that had taken place in a neighbouring village, so he visited the scene. He stated that he assisted in carrying the deceased’s body into the police vehicle and that, with the police officers, they felt the thugs would return. He further stated that they were later arrested after he had been mentioned adversely, but he denied committing the offence.
40. The 2nd Accused/Appellant, Cleophas Ngeywo Kinai, testified that he was from Cherwalany village in Ongotil sub-location, and that he was a farmer and a boda-boda rider. He stated that on 1st February 2015, he was at home with his wife at night and that he knew Jamiar Chebon, whom he used to carry on his motorcycle. He stated that he went to Koponga, and after dropping his passengers, police officers suddenly arrested him and took him to Serian. He stated that the GSU police officers came to where he was, arrested him for half an hour, and then asked him to carry the body to where the police vehicle was. He testified that he was later asked to go to the police station, where he was paid, and that on 6th March 2022 he was arrested by police officers when his name was mentioned adversely. He denied committing the offence.
41. The 3rd Accused/1st Appellant, Alex Savina Taro, testified that he was from Sereto village, Kubra sub-location, Chebuyu location, in Kipsirio division. He stated that he was a farmer who kept livestock and denied knowing Jamiar Chebon. He further testified that on 18th February 2018 he was at his home with his wife, and on 17th September 2018 he was at his 1st wife’s home, by the name Evelyne Temula Massau. He stated that his 2nd wife is Violet Chepkemoi Sude. He further stated that they went to Bakwa in Uganda, where they had been summoned, met police officers from Kenya, and that he was arrested and has remained in custody to date.
42. At the end of the trial, the 4th, 5th and 6th Accused, namely Robin Jikwicha, Aaron Kimutai Sichak and Samuel Kipsang, were acquitted of the four counts of robbery with violence, but the 1st, 2nd and 3rd Accused, namely Timothy Kiptanui (3rd Appellant/DW4), Cleophas Ngeiywo (2nd Accused/DW2) and Alex Juma Taboi (1st Appellant/DW6), were convicted of the four counts of robbery with violence. The trial court sentenced each of them to death by hanging on each count, but kept counts 2 to 4 in abeyance pending execution of count 1.
THE APPEAL
43. Aggrieved by this decision, the Appellants filed a Petition of Appeal on 28 th November 2022 against both conviction and sentence, in which they raised six grounds of appeal. Subsequently, they filed a joint amended grounds of appeal on 23 rd April 2025 raising eight grounds against the sentence and conviction, then later filed another amended homemade Grounds of Appeal reproduced below as follows: -
(1) THAT, the learned trial magistrate court faulted in the points of law and facts by relying on Extra Judicial Confession to convict appellants herein in all 4 (four) counts without corroboration of any other evidence. And also erred in law by failing to note that, extrajudicial confession was declared unlawful by the Court of Appeal at Nairobi. The confession statements were also contrary to section 25(a) cite in KANINI MULI-VS-REP. CR. APPEAL NO. 233 OF 2007 AT NAIROBI COURT OF APPEAL (supra) JUDGMENT DELIVERED DATED 24TH DAY OF JANUARY 2014. Coram. KIHARA KARIUKI, PCA, MUSINGA & MINOTI. J.J.A. Thus, this hon. Court be pleased to allow this appeal in its totality by setting appellants at liberty.
(2) THAT, the learned trial magistrate court erred in the points of law and fact by convicting and sentencing the appellants herein in all four (4) counts without observing that the prosecution failed to prove beyond reasonable doubt that appellants herein are guilty in those counts.
(3) THAT, the learned trial magistrate erred in points of law and facts by failing to observe that identification through recognition in all 4 counts failed when PW1 and PW 2 plus also PW3 failed to properly mention the names of the Appellants herein at the time when they were reporting their first report. Reference is made in Tanzanian case law of MARWA WANGITI MWITA AND ANOTHER-VS- REP. CR. APPEAL NO. 6 OF 1995 (unreported) but framed somehow differently, the court stated: "the ability of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay of complete failure to do so should put a prudent court to enquiry." See also in our Kenyan jurisprudence in: ALEX WENUA CHITUNO-VS- REPUBLIC, CR. APPEAL NO. 97 OF 2020 (2023) EKLR. (CORAM: MURGOR, KAN ΤΑΙ & NGENYE-MACHARIA, J.J.A)
(4) THAT, the learned trial magistrate court erred in the points of law and facts by failing to note that, the entire trial was mistrial and unfair when the trial court denied appellants herein a right to cross-examine PW1, PW2 and PW3. This was contrary to the Criminal Procedure Code Cap 75 Laws of Kenya. See BUKENYA AND OTHERS -VS- UGANDA (SUPRA) current section 150 of the C.P.C. Thus, this Hon. Court be pleased to allow these appeals by setting aside death penalty imposed on all four counts, quash, conviction therein and proceed to set us at liberty.
(5) THAT, the court below erred in the points of law by failing to properly evaluate the entire prosecution evidence. Cite MOHAMMED WEKESA MUSUMBA V.R (2010) eKLR.
(6) THAT, the learned trial magistrate court erred in the points of law and facts by convicting and sentencing the appellants herein death penalty in 4 counts without observing that, the prosecution evidence inconsistent and contradictory.
(7) THAT, the learned trial magistrate court erred in the points of law and facts by failing to note that, the prosecution case was not proved beyond reasonable doubt as it was stated in REPUBLIC-VS- LIFCHUS (1997) 3 SCR 320 para. 5 in the Supreme Court of Canada. Thus, this Hon. Court be pleased to construe the benefits of doubts observed in the prosecution case as discussed herein above and proceed to set us at liberty unless otherwise lawfully detained.
(8) THAT the learned Magistrate erred in points of law and facts by failing to invoke the jurisdiction of Section 200 (3) of the Criminal Procedure Code, Cap 75 Laws of Kenya, PW1, PW2 and PW3 were proceeded before the coram of Hon. C.A.S. Mutai (SPM) while PW4 No. 216047 ASP Kennedy Limetra and Dr. Obongi attached to Bungoma Referral Hospital who produced the post-mortem report were heard by Hon. J. King’ori (CM) dated 21/05/2019 see page 36-50. Thus this honourable court be pleased to set the Appellants herein at liberty.
44. The Appeal was canvass it by written submissions.
THE SUBMISSIONS
45. The Appellants filed joint submissions in which they alleged that they were tortured at various police stations to extract confessions, which they vehemently deny. They argue that the confessions violate Sections 25(a) and 26 of the Evidence Act Cap 80 and Articles 49(1) and 50(1) of the Constitution, as they were made without the presence of a chosen third party, adequate language assistance, or safeguards against self-incrimination. They cited the cases of Rex v Nnata s/o Mdimi (1944-1946) EA 83 and Nayinda s/o Batungwa v R (1959) EA 688, in which the court treated the confessions adduced into evidence as extrajudicial confessions. They also cited the case of Kanini Muli v R.
46. The Appellants submitted that the Prosecution’s case was marred by inconsistencies and contradictions. They stated that PW4, the Investigating Officer, gave conflicting testimony across different criminal cases, including Criminal Case No. 745 of 2018 at the Bungoma CM’s Court, on whether the 3rd Appellant actually confessed or refused to record a statement. They also pointed out that the Chief Magistrate (PW5) recorded a statement that referenced an entirely different complainant, Silas Chemoge, and different locations for the commission of the offence, which did not match the actual charges in this case and the alleged complainants, namely Jamin Chebor, David Kirui, Fredrick Nasimiyu and Verone Rotich Kiboi, in Chepkurkur. They urged the Court to dismiss the 2nd Appellant’s confession.
47. It was their submission that the Prosecution failed to prove the four (4) counts beyond reasonable doubt. In particular, under count 1, it was submitted that there were no eyewitnesses. The primary witness, PW3, was not at the scene during the incident and failed to name or provide accurate descriptions of the Appellants in the initial police report recorded in the Occurrence Book/OB entry.
48. On count 2, the Appellants submitted that there were serious material contradictions between the witness testimony and the charge sheet. PW1 named her deceased husband as Fredrick Naibei Chembenti and stated that Kshs. 600 was stolen, whereas the charge sheet lists the deceased as David Kirui and the stolen amount as Kshs. 6,000/=. On count 3, the Appellants point out that the Prosecution failed to present a single witness or provide any legal basis for this charge. Lastly, on count 4, the identification evidence by PW2 was unreliable, uncorroborated, and lacked vital descriptions in the initial report. They relied on the cases of Alex Weinua Chetumo v Republic and Maitanyi v R (1986) eKLR on the issue of identification.
49. The Appellants argue that the purported identification by PW1, PW2, and PW3 did not meet the legal threshold for recognition, as none of the witnesses mentioned the Appellants' names
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