' Introduction
1. The Appellant, Eliud Odhiambo Owido, being aggrieved by his conviction and sentence in Kisumu Chief Magistrate’s Court Criminal Case No. E880 of 2021, filed this appeal.
2. The background of the matter is that the Appellant was charged with the offence of robbery with violence, contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 27th September 2021, along Kisumu-Kakai Road near Marie Stopes Hospital, Kondele, Kisumu he jointly with others, not before the court, robbed David Ezekiel Ogutu of Kshs. 616,435, and immediately before or after the robbery, threatened to use actual violence against him.
3. The trial court convicted the Appellant of robbery under Section 295 as read with Section 296(1) of the Penal Code and sentenced him to five (5) years'' imprisonment on 28th April 2023.
4. Aggrieved by the judgment, the Appellant lodged the instant appeal against both conviction and sentence, raising eight (8) grounds in his Petition of Appeal, including: -
i. The learned magistrate erred in convicting the Appellant on insufficient and contradictory evidence.
ii. The magistrate erred in failing to appreciate the applicable legal principles under the Evidence Act and the Penal Code.
iii. The trial court erred by improperly shifting the burden of proof to the Appellant.
iv. The decision was against the weight of evidence and disregarded material contradictions in the prosecution’s case.
v. The trial magistrate erred by imposing an excessive and unjustified sentence.
Submissions
5. The appeal was canvassed through written submissions. The Appellant filed his submissions dated 17th April 2024. No submissions were filed on behalf of the Respondent.
6. In his submissions, the Appellant argued that the trial court erred in convicting the Appellant in the absence of sufficient evidence. According to the Appellant, the identification was flawed since the treatment notes of the person alleged to have participated in the robbery referenced a different person, namely Joseph Ochieng.
7. It was further the Appellant’s submissions that none of the stolen property was recovered from him and that the witness testimonies were unreliable. The only eyewitness called by the prosecution did not witness the entire incident, rendering the conviction unsafe.
8. Regarding the sentence, the Appellant submitted that the same was excessive and unwarranted. He contended that the trial court failed to exercise its discretion judiciously and imposed a harsh sentence despite the mitigating factors. He asserted that the court had the discretion to impose a lesser sentence under Section 296(1) of the Penal Code.
Analysis and Determination
9. In dealing with this appeal, this court is fully cognizant of its duty as the first appellate court, as expressed by the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, is as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
10. Further in the case of Okeno Vs R (1972) EA 32 the court stated as follows on the duty of the first appellate court: -
“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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.
11. This court is equally aware that this being a criminal case, the standard of proof required is that of beyond any reasonable doubt and that the same is a burden placed by law on the prosecution. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, the court (Mativo, J, as he then was) expressed himself on the issue as hereunder: -
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
12. What amounts to reasonable doubt has been clarified by the Court of Appeal in the case of Moses Nato Raphael vs. Republic [2015] eKLR as follows; -
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated: -
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
13. Bearing the above general principles in mind, I now turn to the instant appeal. having perused and considered the grounds of appeal, the record of appeal and the parties’ submissions filed herein, I identify the following as the issues as requiring determination by this Court; -
i. Whether there was sufficient evidence to support
ii. Whether the sentence meted out to the Appellant was harsh and excessive.
Whether there was sufficient evidence to support the conviction
14. The offence of robbery with violence is a creation of Sections 295 as read with Section 296 (2) of the Penal Code. The provisions respectively provide as follows;
“295. Definition of robbery
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”
15. Section 296 of the Penal Code stipulates the punishment of robbery as follows; -
“(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) 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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death”
16. Robbery is thus committed when a person steals anything capable of being stolen and immediately before or after the theft, 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. [See the Court of Appeal decision of Jackson Oluoch & another v Republic [1984] eKLR].
17. As for robbery with violence, the Court of Appeal in its decision in the case of Jackson Oluoch & another v Republic (Supra), listed the ingredients of robbery with violence under section 296 (2) of the Penal Code to be the following:
a. The offender is armed with any dangerous or offensive weapon or instrument, or
b. The offender is in company with one or more other person or persons or
c. At or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses other personal violence to any person.”
18. Further, in Dima Denge Dima & Others v Republic [2013] eKLR, the Court of Appeal held that; -
“the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to sustain an offence of robbery with violence.”
19. The particulars of the charge before the trial court were that on 27th September 2021, along the Kisumu-Kakamega Road near Marie Stopes Hospital. Kondele in Kisumu Central sub-county within Nyanza Region, the 1st (Appellant herein) and the 2nd accused persons, jointly with others who were then not before the Court, robbed DAVID EZEKIEL OGUTU of Kshs 616,435/= and immediately before such robbery threatened to use actual violence to the said DAVID EZEKIEL OGUTU.
20. From the proceedings before the lower court, I note that it was the testimony of the complainant (PW2) – David Ezekiel Abuor Ogutu that on the day of the incident (27th September 2021), he was on his way from his place of work (National Oil – Kakamega Road) carrying a sum of Kshs. 616,435/- to deposit at the Co-operative Bank Kibuye branch. That he had put the money in an envelope then to a black bag and boarded a motorcycle for the bank.
21. It was further the complainant’s testimony that while on his way to the bank a motorcycle with a well-built rider, carrying two pillion passengers, approached him, knocked his motorcycle, which impact made him (PW2) almost fall off his motorcycle. That in the process, the 2nd passenger, appellant herein (then a 1st accused), snatched the bag containing the money from him and threw it to the other passenger (2nd accused). The 2nd accused and his rider then sped off with the n=bag and money, leaving behind the person who had snatched the bag (the appellant).
22. It was the complainant’s evidence that he chased the person who had snatched the bag from him, all this time screaming for help. That with the help of the members of the public, the appellant was intercepted and beaten by members of the public, before being rescued by the police who took him in their custody.
23. The Investigating officer, No. 9087 PC John Tula (PW1), testified and told the trial court that on the material day (27th September 2021), he was on duty when one suspect (the appellant) was taken to the station by Police officers and members of the public, accompanied by the complainant. On the identification of the appellant, PC Tula told the trial court that the Appellant initially reported that he is known as James Ochieng, that it is this name that was recorded at the hospital when the appellant was taken for treatment.
24. The Appellant in his unsworn statement denied the charges and stated that on the date in question, while at his usual place of work, he got a client who wanted to be taken to Marie stops. He took the passengers, and they were three on the motorcycle. That while on their way, he met a motorcycle on the wrong side of the road, the two collided, and that is when the complainant started shouting that the Appellant (1st Accused) and the 2 passengers were thieves. The Appellant was adamant that it is this mistaken view by the complainant that made the members of the public beat him and the subsequent arrest by the police, culminating in to them being wrongfully charged in court.
25. As pointed out above, in addition to proving that the offence of robbery with violence occurred, the evidence led by the prosecution is required to show that the accused is the one responsible for the robbery. In Suleiman Kamau Nyambura (supra) the court held that:
“In addition [to the ingredients], and what is crucial in a criminal trial is also the requirement to prove, in addition to there being one of the set out ingredients of robbery with violence is the need to positively identify the assailant/s in question.”
26. In the case of Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR), the court stated that:
“To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness''s testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness''s intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness''s testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.”
27. I have carefully examined the circumstances under which identification was made. The evidence of identification was led by the complainant (PW2), who gave an eye witness account of what transpired on the material date, and corroborated by PW1, the investigating officer.
28. The complainant was categorical that he clearly saw the Appellant when the Appellant disembarked from the motorcycle and grabbed his bag, which had the money. The court also notes that the complainant (PW2) identified the Appellant in broad daylight. The conditions were favorable for positive identification, and the danger of mistaken identity is therefore sufficiently ruled out.
29. Furthermore, the Appellant’s argument regarding the treatment notes is not persuasive. The complainant consistently identified the Appellant at the scene and maintained visual contact during the pursuit until his apprehension. The discrepancy in the name is explained by the Appellant having initially given a false name at the police station. This was clarified at trial by PW1, and remains uncontroverted.
30. In the premises, I am therefore in agreement with the trial magistrate that the appellant was positively identified and placed at the scene of the robbery. Accordingly, the appeal on conviction fails.
Whether the Sentence Was Manifestly Excessive
31. Sentencing is a discretion of the court. But the court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence. The Court of Appeal in Thomas Mwambu Wenyi v Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira v State of Mahareshtra at paragraph 70-71 where the court held that: -
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
32. Section 296(2) of the Penal Code prescribes a death sentence for the offence of robbery with violence. In the present case, despite having been charged with the offence of robbery with violence, the trial court at the end of the trial, convicted the appellant of simple robbery under Section 295, apparently invoking Section 179 of the Criminal Procedure Code, which allows conviction for a minor offence if the main charge is not proven but the lesser cognate offence''s elements are. The Section provides that: -
“179. When offence proved is included in offence charged
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
33. Evidence on record indicates that the Appellant was in the company of two other individuals when the complainant’s motorcycle was deliberately hit, facilitating the robbery. Although the magistrate stated there was no use of violence, this Court is of the view that the evidence of forcibly halting the complainant’s motorcycle constitutes actual violence within the meaning of Section 295 of the Penal Code.
34. In Joseph Wangangu v Republic [1977] eKLR, Muriuki Ngure Munyi v Republic [2005] eKLR, the Court of Appeal stated that: -
“But we wish to point out that we do not agree with his reasons for reducing the offence in this case from one punishable under Section 296(2) to one punishable under Section 296(1) of the Penal code and Mr. Orinda is also applying for reinstatement of Section 296(2). ….…….
With all due respect, we hold that in so saying the learned magistrate gravely misdirected himself on a point of law and therefore erred in convicting and sentencing the Appellants under Section 296(1) of the Penal Code. The grounds advanced for reducing the offence from Section 296(2) to Section 296(1) of the Penal Code are not covered by any of those provisions. They simply amount to a refusal to apply Section 296(2) of the Penal Code ……
As it was said by the Court of Appeal in the case of JOHN NDUNGU Vs REPUBLIC Criminal Appeal No. 116 of 1995 at Mombasa, there are three sets of circumstances prescribed in Section 296(2) as given below:
“(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; www.kenyalaw.org Muriuki Ngure Munyi alias Karaya & another v Republic [2005] eKLR 9 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.”
The Court of Appeal said that the presence of a single one of any of those circumstances is sufficient to sustain a conviction under Section 296(2) of the Penal Code.”
35. Although evidence on record supported a conviction for robbery with violence under Section 296(2), the trial court convicted for simple robbery and sentenced the Appellant to five (5) years'' imprisonment. The question then for this court is whether to enhance the sentence to death penalty as provided under section 296(2) of the Penal Code.
36. Sentencing is a matter for the discretion of the trial court. The principles guiding interference with sentencing by the appellate Court are as pointed out by the Court of Appeal for Eastern Africa in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, where the Court observed as follows:
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
37. In Patrick Muli Mukutha v Republic [2019] eKLR, Odunga J (as he then was), while citing several authorities, stated that the third criterion for setting aside being that where the sentence is found to be “manifestly excessive” when stated as follows: -
“To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
38. In this case, the Court having found that evidence on record supported a conviction for the offence of robbery with violence under Section 296(2) of the Penal Code since the robbers were more than one and force was used, the proper approach would have been to enhance the sentence to death penalty as authorized under Section 354 (3) (iii) of the Criminal Procedure Code, which permits this Court to increase the sentence where sufficient grounds are established.
39. It is, however, trite law that the power to enhance a sentence passed by a trial court can only be exercised by the appellate court where it is established that the appellant had been warned, at the earliest opportunity, at the commencement of hearing of his appeal, that there is a real danger that should the appeal be heard and fail a lesser sentence could be enhanced by the High Court in terms of the said Section 354 of the Criminal Procedure Code. See the case of JJW v Republic (Kisumu) Criminal Appeal No. 11 of 2011 (ur) where the Court of Appeal held that: -
“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”
40. In the premises, this Court cannot therefore lawfully enhance the sentence or alter the conviction since there is no evidence that the Appellant was put on notice and warned of the risk of enhancement of the sentence meted out by the trial court in the event that this appeal was to fail.
41. For the reasons set out above, the appeal is dismissed. The trial court’s findings on conviction and sentence are hereby upheld, save to state that the sentence shall run from the date of conviction, with credit for time already served.
42. It is so ordered.
43. Right of Appeal within 14 days of publication of this judgment on the Judiciary’s Case Tracking System (CTS).
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
In the presence of:
David – Court Assistant
.Appellant is virtually present (In prison)
'
1. The Appellant, Eliud Odhiambo Owido, being aggrieved by his conviction and sentence in Kisumu Chief Magistrate’s Court Criminal Case No. E880 of 2021, filed this appeal.
2. The background of the matter is that the Appellant was charged with the offence of robbery with violence, contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 27th September 2021, along Kisumu-Kakai Road near Marie Stopes Hospital, Kondele, Kisumu he jointly with others, not before the court, robbed David Ezekiel Ogutu of Kshs. 616,435, and immediately before or after the robbery, threatened to use actual violence against him.
3. The trial court convicted the Appellant of robbery under Section 295 as read with Section 296(1) of the Penal Code and sentenced him to five (5) years'' imprisonment on 28th April 2023.
4. Aggrieved by the judgment, the Appellant lodged the instant appeal against both conviction and sentence, raising eight (8) grounds in his Petition of Appeal, including: -
i. The learned magistrate erred in convicting the Appellant on insufficient and contradictory evidence.
ii. The magistrate erred in failing to appreciate the applicable legal principles under the Evidence Act and the Penal Code.
iii. The trial court erred by improperly shifting the burden of proof to the Appellant.
iv. The decision was against the weight of evidence and disregarded material contradictions in the prosecution’s case.
v. The trial magistrate erred by imposing an excessive and unjustified sentence.
Submissions
5. The appeal was canvassed through written submissions. The Appellant filed his submissions dated 17th April 2024. No submissions were filed on behalf of the Respondent.
6. In his submissions, the Appellant argued that the trial court erred in convicting the Appellant in the absence of sufficient evidence. According to the Appellant, the identification was flawed since the treatment notes of the person alleged to have participated in the robbery referenced a different person, namely Joseph Ochieng.
7. It was further the Appellant’s submissions that none of the stolen property was recovered from him and that the witness testimonies were unreliable. The only eyewitness called by the prosecution did not witness the entire incident, rendering the conviction unsafe.
8. Regarding the sentence, the Appellant submitted that the same was excessive and unwarranted. He contended that the trial court failed to exercise its discretion judiciously and imposed a harsh sentence despite the mitigating factors. He asserted that the court had the discretion to impose a lesser sentence under Section 296(1) of the Penal Code.
Analysis and Determination
9. In dealing with this appeal, this court is fully cognizant of its duty as the first appellate court, as expressed by the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, is as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
10. Further in the case of Okeno Vs R (1972) EA 32 the court stated as follows on the duty of the first appellate court: -
“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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.
11. This court is equally aware that this being a criminal case, the standard of proof required is that of beyond any reasonable doubt and that the same is a burden placed by law on the prosecution. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, the court (Mativo, J, as he then was) expressed himself on the issue as hereunder: -
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
12. What amounts to reasonable doubt has been clarified by the Court of Appeal in the case of Moses Nato Raphael vs. Republic [2015] eKLR as follows; -
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated: -
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
13. Bearing the above general principles in mind, I now turn to the instant appeal. having perused and considered the grounds of appeal, the record of appeal and the parties’ submissions filed herein, I identify the following as the issues as requiring determination by this Court; -
i. Whether there was sufficient evidence to support
ii. Whether the sentence meted out to the Appellant was harsh and excessive.
Whether there was sufficient evidence to support the conviction
14. The offence of robbery with violence is a creation of Sections 295 as read with Section 296 (2) of the Penal Code. The provisions respectively provide as follows;
“295. Definition of robbery
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”
15. Section 296 of the Penal Code stipulates the punishment of robbery as follows; -
“(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) 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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death”
16. Robbery is thus committed when a person steals anything capable of being stolen and immediately before or after the theft, 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. [See the Court of Appeal decision of Jackson Oluoch & another v Republic [1984] eKLR].
17. As for robbery with violence, the Court of Appeal in its decision in the case of Jackson Oluoch & another v Republic (Supra), listed the ingredients of robbery with violence under section 296 (2) of the Penal Code to be the following:
a. The offender is armed with any dangerous or offensive weapon or instrument, or
b. The offender is in company with one or more other person or persons or
c. At or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses other personal violence to any person.”
18. Further, in Dima Denge Dima & Others v Republic [2013] eKLR, the Court of Appeal held that; -
“the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to sustain an offence of robbery with violence.”
19. The particulars of the charge before the trial court were that on 27th September 2021, along the Kisumu-Kakamega Road near Marie Stopes Hospital. Kondele in Kisumu Central sub-county within Nyanza Region, the 1st (Appellant herein) and the 2nd accused persons, jointly with others who were then not before the Court, robbed DAVID EZEKIEL OGUTU of Kshs 616,435/= and immediately before such robbery threatened to use actual violence to the said DAVID EZEKIEL OGUTU.
20. From the proceedings before the lower court, I note that it was the testimony of the complainant (PW2) – David Ezekiel Abuor Ogutu that on the day of the incident (27th September 2021), he was on his way from his place of work (National Oil – Kakamega Road) carrying a sum of Kshs. 616,435/- to deposit at the Co-operative Bank Kibuye branch. That he had put the money in an envelope then to a black bag and boarded a motorcycle for the bank.
21. It was further the complainant’s testimony that while on his way to the bank a motorcycle with a well-built rider, carrying two pillion passengers, approached him, knocked his motorcycle, which impact made him (PW2) almost fall off his motorcycle. That in the process, the 2nd passenger, appellant herein (then a 1st accused), snatched the bag containing the money from him and threw it to the other passenger (2nd accused). The 2nd accused and his rider then sped off with the n=bag and money, leaving behind the person who had snatched the bag (the appellant).
22. It was the complainant’s evidence that he chased the person who had snatched the bag from him, all this time screaming for help. That with the help of the members of the public, the appellant was intercepted and beaten by members of the public, before being rescued by the police who took him in their custody.
23. The Investigating officer, No. 9087 PC John Tula (PW1), testified and told the trial court that on the material day (27th September 2021), he was on duty when one suspect (the appellant) was taken to the station by Police officers and members of the public, accompanied by the complainant. On the identification of the appellant, PC Tula told the trial court that the Appellant initially reported that he is known as James Ochieng, that it is this name that was recorded at the hospital when the appellant was taken for treatment.
24. The Appellant in his unsworn statement denied the charges and stated that on the date in question, while at his usual place of work, he got a client who wanted to be taken to Marie stops. He took the passengers, and they were three on the motorcycle. That while on their way, he met a motorcycle on the wrong side of the road, the two collided, and that is when the complainant started shouting that the Appellant (1st Accused) and the 2 passengers were thieves. The Appellant was adamant that it is this mistaken view by the complainant that made the members of the public beat him and the subsequent arrest by the police, culminating in to them being wrongfully charged in court.
25. As pointed out above, in addition to proving that the offence of robbery with violence occurred, the evidence led by the prosecution is required to show that the accused is the one responsible for the robbery. In Suleiman Kamau Nyambura (supra) the court held that:
“In addition [to the ingredients], and what is crucial in a criminal trial is also the requirement to prove, in addition to there being one of the set out ingredients of robbery with violence is the need to positively identify the assailant/s in question.”
26. In the case of Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR), the court stated that:
“To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness''s testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness''s intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness''s testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.”
27. I have carefully examined the circumstances under which identification was made. The evidence of identification was led by the complainant (PW2), who gave an eye witness account of what transpired on the material date, and corroborated by PW1, the investigating officer.
28. The complainant was categorical that he clearly saw the Appellant when the Appellant disembarked from the motorcycle and grabbed his bag, which had the money. The court also notes that the complainant (PW2) identified the Appellant in broad daylight. The conditions were favorable for positive identification, and the danger of mistaken identity is therefore sufficiently ruled out.
29. Furthermore, the Appellant’s argument regarding the treatment notes is not persuasive. The complainant consistently identified the Appellant at the scene and maintained visual contact during the pursuit until his apprehension. The discrepancy in the name is explained by the Appellant having initially given a false name at the police station. This was clarified at trial by PW1, and remains uncontroverted.
30. In the premises, I am therefore in agreement with the trial magistrate that the appellant was positively identified and placed at the scene of the robbery. Accordingly, the appeal on conviction fails.
Whether the Sentence Was Manifestly Excessive
31. Sentencing is a discretion of the court. But the court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence. The Court of Appeal in Thomas Mwambu Wenyi v Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira v State of Mahareshtra at paragraph 70-71 where the court held that: -
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
32. Section 296(2) of the Penal Code prescribes a death sentence for the offence of robbery with violence. In the present case, despite having been charged with the offence of robbery with violence, the trial court at the end of the trial, convicted the appellant of simple robbery under Section 295, apparently invoking Section 179 of the Criminal Procedure Code, which allows conviction for a minor offence if the main charge is not proven but the lesser cognate offence''s elements are. The Section provides that: -
“179. When offence proved is included in offence charged
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
33. Evidence on record indicates that the Appellant was in the company of two other individuals when the complainant’s motorcycle was deliberately hit, facilitating the robbery. Although the magistrate stated there was no use of violence, this Court is of the view that the evidence of forcibly halting the complainant’s motorcycle constitutes actual violence within the meaning of Section 295 of the Penal Code.
34. In Joseph Wangangu v Republic [1977] eKLR, Muriuki Ngure Munyi v Republic [2005] eKLR, the Court of Appeal stated that: -
“But we wish to point out that we do not agree with his reasons for reducing the offence in this case from one punishable under Section 296(2) to one punishable under Section 296(1) of the Penal code and Mr. Orinda is also applying for reinstatement of Section 296(2). ….…….
With all due respect, we hold that in so saying the learned magistrate gravely misdirected himself on a point of law and therefore erred in convicting and sentencing the Appellants under Section 296(1) of the Penal Code. The grounds advanced for reducing the offence from Section 296(2) to Section 296(1) of the Penal Code are not covered by any of those provisions. They simply amount to a refusal to apply Section 296(2) of the Penal Code ……
As it was said by the Court of Appeal in the case of JOHN NDUNGU Vs REPUBLIC Criminal Appeal No. 116 of 1995 at Mombasa, there are three sets of circumstances prescribed in Section 296(2) as given below:
“(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; www.kenyalaw.org Muriuki Ngure Munyi alias Karaya & another v Republic [2005] eKLR 9 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.”
The Court of Appeal said that the presence of a single one of any of those circumstances is sufficient to sustain a conviction under Section 296(2) of the Penal Code.”
35. Although evidence on record supported a conviction for robbery with violence under Section 296(2), the trial court convicted for simple robbery and sentenced the Appellant to five (5) years'' imprisonment. The question then for this court is whether to enhance the sentence to death penalty as provided under section 296(2) of the Penal Code.
36. Sentencing is a matter for the discretion of the trial court. The principles guiding interference with sentencing by the appellate Court are as pointed out by the Court of Appeal for Eastern Africa in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, where the Court observed as follows:
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
37. In Patrick Muli Mukutha v Republic [2019] eKLR, Odunga J (as he then was), while citing several authorities, stated that the third criterion for setting aside being that where the sentence is found to be “manifestly excessive” when stated as follows: -
“To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
38. In this case, the Court having found that evidence on record supported a conviction for the offence of robbery with violence under Section 296(2) of the Penal Code since the robbers were more than one and force was used, the proper approach would have been to enhance the sentence to death penalty as authorized under Section 354 (3) (iii) of the Criminal Procedure Code, which permits this Court to increase the sentence where sufficient grounds are established.
39. It is, however, trite law that the power to enhance a sentence passed by a trial court can only be exercised by the appellate court where it is established that the appellant had been warned, at the earliest opportunity, at the commencement of hearing of his appeal, that there is a real danger that should the appeal be heard and fail a lesser sentence could be enhanced by the High Court in terms of the said Section 354 of the Criminal Procedure Code. See the case of JJW v Republic (Kisumu) Criminal Appeal No. 11 of 2011 (ur) where the Court of Appeal held that: -
“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”
40. In the premises, this Court cannot therefore lawfully enhance the sentence or alter the conviction since there is no evidence that the Appellant was put on notice and warned of the risk of enhancement of the sentence meted out by the trial court in the event that this appeal was to fail.
41. For the reasons set out above, the appeal is dismissed. The trial court’s findings on conviction and sentence are hereby upheld, save to state that the sentence shall run from the date of conviction, with credit for time already served.
42. It is so ordered.
43. Right of Appeal within 14 days of publication of this judgment on the Judiciary’s Case Tracking System (CTS).
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
In the presence of:
David – Court Assistant
.Appellant is virtually present (In prison)
'