REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E083 OF 2024
DANIEL KIRWA RONO…………………….………………APPLICANT
VERSUS
REPUBLIC……………………………………….……………RESPONDENT
RULING
A. Background
1. The Appellant Daniel Kirwa was charged jointly with Salim Juma and Hillary Kibet with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars were that on the night of 24th and 25th December 2022 at Kalaba area jointly with others not before court being armed with unknown dangerous weapons robbed Bravin Barasa Wanjala of his motor cycle registration number KMGD 412 STVS valued at Ksh 131,390 and immediately after the time of such robbery murdered the said Bravin Barasa Wanjala.
2. The Appellant faced an alternative charge of handling stolen property contrary to section 322 of the penal code.
3. The Appellant and his co-accused denied the charges and the case proceeded for trial with the Respondent calling 8 witnesses. When put on their defence, the 1st and 3rd accused gave sworn testimonies but did not call any witness.
4. The appellant herein had jumped bail on 13.2.2024 and was arrested and presented to court on 19.6.2024 and his bond was cancelled after his surety was discharged. On 2.7.2024 the trial court directed that a pre-sentence report be filed in respect of the Appellant, yet he had not been given an opportunity to conduct his defence. The trial court proceeded to sentence the Appellant to 6 years imprisonment while his co-accused were sentenced to 4 years each.
5. Being aggrieved and dissatisfied with the decision of the trial court, the Appellant herein filed the appeal which he premised on the following grounds:-
1. That the learned trial magistrate erred in law and fact by not considering the fact the evidence adduced by prosecution was not credible to convict I the appellant.
2. That the Appellant was not accorded the whole article 50 of the Constitution of Kenya 2010.
3. That the Learned trial magistrate erred in law and fact to convict I the appellant basing on contradictory and uncorroborated evidence.
4. That the trial court failed to evaluate the evidence on record hence acting on wrong principle.
5. That I humbly pray that I be allowed to add supplementary grounds of appeal after being served with certified court proceedings of Criminal case file No. 211 of 2023.
6. Subsequently the Appellant filed a supplementary ground of appeal and the premised it on the grounds:-
i. That the Honourable trial magistrate erred in law and facts to convict me the appellant without knowing that my arrest was a mistaken identity.
ii. That, the Honourable trial magistrate erred in law and the fact to violate article 50 of the Constitution of Kenya 2010 and other provisions in law.
iii. That, the trial magistrate erred in law and fact to convict me I the appellant on hearsay evidence with again on a charge sheet which was defective.
iv. That, the Honourable trial magistrate erred in law and fact to rely on evidence of witnesses some who are not qualified professions.
v. That the Honourable trial magistrate erred in law and facts to deny me I the appellant to give evidence.
7. Parties were directed to file their submissions on 10th December 2025 the Respondent filed a notice of concession to the appeal.
8. The right of an accused person to a fair hearing is enshrined in article 50:
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
9. The trial court infringed on the Appellants right to defend himself and proceeded to sentence him without making any finding on his culpability. This omission must be redressed. I thus allow the appeal herein and I make the following orders:-
i. The order sentencing the Appellant to 6 years is hereby set aside.
ii. The Appellant’s case be remitted back to the trial court for re-trial solely for the purpose of hearing of the Appellant’s defence case.
iii. This file is hereby marked as closed.
iv. The trial file be returned to the lower court forthwith.
Delivered, signed, and dated at Bungoma this 19th day of December, 2025.
MWANAISHA S. SHARIFF
JUDGE
In the presence of :
Appellant
Ms Kibet for the Respodent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E083 OF 2024
DANIEL KIRWA RONO…………………….………………APPLICANT
VERSUS
REPUBLIC……………………………………….……………RESPONDENT
RULING
A. Background
1. The Appellant Daniel Kirwa was charged jointly with Salim Juma and Hillary Kibet with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars were that on the night of 24th and 25th December 2022 at Kalaba area jointly with others not before court being armed with unknown dangerous weapons robbed Bravin Barasa Wanjala of his motor cycle registration number KMGD 412 STVS valued at Ksh 131,390 and immediately after the time of such robbery murdered the said Bravin Barasa Wanjala.
2. The Appellant faced an alternative charge of handling stolen property contrary to section 322 of the penal code.
3. The Appellant and his co-accused denied the charges and the case proceeded for trial with the Respondent calling 8 witnesses. When put on their defence, the 1st and 3rd accused gave sworn testimonies but did not call any witness.
4. The appellant herein had jumped bail on 13.2.2024 and was arrested and presented to court on 19.6.2024 and his bond was cancelled after his surety was discharged. On 2.7.2024 the trial court directed that a pre-sentence report be filed in respect of the Appellant, yet he had not been given an opportunity to conduct his defence. The trial court proceeded to sentence the Appellant to 6 years imprisonment while his co-accused were sentenced to 4 years each.
5. Being aggrieved and dissatisfied with the decision of the trial court, the Appellant herein filed the appeal which he premised on the following grounds:-
1. That the learned trial magistrate erred in law and fact by not considering the fact the evidence adduced by prosecution was not credible to convict I the appellant.
2. That the Appellant was not accorded the whole article 50 of the Constitution of Kenya 2010.
3. That the Learned trial magistrate erred in law and fact to convict I the appellant basing on contradictory and uncorroborated evidence.
4. That the trial court failed to evaluate the evidence on record hence acting on wrong principle.
5. That I humbly pray that I be allowed to add supplementary grounds of appeal after being served with certified court proceedings of Criminal case file No. 211 of 2023.
6. Subsequently the Appellant filed a supplementary ground of appeal and the premised it on the grounds:-
i. That the Honourable trial magistrate erred in law and facts to convict me the appellant without knowing that my arrest was a mistaken identity.
ii. That, the Honourable trial magistrate erred in law and the fact to violate article 50 of the Constitution of Kenya 2010 and other provisions in law.
iii. That, the trial magistrate erred in law and fact to convict me I the appellant on hearsay evidence with again on a charge sheet which was defective.
iv. That, the Honourable trial magistrate erred in law and fact to rely on evidence of witnesses some who are not qualified professions.
v. That the Honourable trial magistrate erred in law and facts to deny me I the appellant to give evidence.
7. Parties were directed to file their submissions on 10th December 2025 the Respondent filed a notice of concession to the appeal.
8. The right of an accused person to a fair hearing is enshrined in article 50:
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
9. The trial court infringed on the Appellants right to defend himself and proceeded to sentence him without making any finding on his culpability. This omission must be redressed. I thus allow the appeal herein and I make the following orders:-
i. The order sentencing the Appellant to 6 years is hereby set aside.
ii. The Appellant’s case be remitted back to the trial court for re-trial solely for the purpose of hearing of the Appellant’s defence case.
iii. This file is hereby marked as closed.
iv. The trial file be returned to the lower court forthwith.
Delivered, signed, and dated at Bungoma this 19th day of December, 2025.
MWANAISHA S. SHARIFF
JUDGE
In the presence of :
Appellant
Ms Kibet for the Respodent
Peter Machoni – Court Assistant