HCCRA NO E031 OF 2025 1
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL APPEAL NO. E031 OF 2025
EVANS OSANGO………………………………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………………………RESPONDENT
(Being an Appeal from the Judgment of Hon J. A. Agonda (SPM) delivered at
Vihiga in Senior Principal Magistrate’s Court in Criminal Case No E788 of
2023 on 3rd December 2025)
Coram: Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
JUDGMENT
1. The Appellant herein was charged jointly with three (3) others not before
this Court with the offence of robbery with violence contrary to Section
296 (2) of the Penal Code Cap 63 (Laws of Kenya) on count I.
2. The particulars were that on the night of 10th October, 2023 at Masigulu
Village, Chango Sub-location Central Maragoli, Vihiga County jointly
with others not before the Court while armed with dangerous weapons
namely pangas robbed Annaciata Barusi Kadima Kshs 17,000/= and
immediately after the time of such robbery injured one Wilberforce
Kedogo.
3. He was also charged of the offense of grievous harm contrary to Section
234 of the Penal Code Cap 63 (Laws of Kenya) on count II.
4. The particulars were that on 10th October, 2023 at Masigulu Village,
Chango Sub-Location Central Maragoli, Vihiga County jointly with
others not before the Court while armed with dangerous weapons
unlawfully did grievous harm to Atonya Wilberforce.
5. He was tried and convicted of the two (2) offences and was sentenced to
twenty-five (25) years imprisonment.
6. Being dissatisfied with the said Judgement, on 23rd December 2025, he
lodged the Appeal herein. The same was dated 22nd December 2025. He
set out five (5) Grounds of Appeal as follows:-
HCCRA NO E031 OF 2025 2
a) That the trial Court erred in law and in fact in not making a finding
that the ingredients of robbery with violence were not proved
beyond reasonable doubt.
b) That the trial Court erred in law and in fact in breaching the
Appellant’s Constitutional rights hence occasioning a miscarriage
of justice.
c) That the trial Court erred in law and fact in admitting evidence that
was obtained in a manner that was detrimental to justice hence
unfair trial.
d) That the trial Court erred in law and fact in not weighing the
conflicting prosecution evidence which were consequential to
conviction.
e) That the trial Court erred in law and in fact in not considering
procedural errors which were inconsequential to conviction.
7. His Written Submissions were dated 19th March 2026 and filed on 23rd
March 2026 while those of the Respondent were dated 22nd April 2026
and filed on 13th May 2026. The Judgment herein is based on the said
Written Submissions which both parties relied upon in their entirety.
Analysis and Determination
8. It is settled law that the duty of a first appellate Court is to evaluate
afresh the evidence adduced before the trial Court in order to arrive at
its own independent conclusion but bearing in mind that it neither saw
nor heard the witnesses testify.
9. This was aptly stated in the case of Selle & Another vs Associated
Motor Boat Co. Ltd & Others [1968] EA 123 where the Court therein
held that the appellate Court was not bound by the findings of fact of
the trial Court but that in re-considering and re-evaluating the evidence
so as to draw its own conclusions, it always had to bear in mind that it
neither saw nor heard the witnesses testify and thus make due
allowance in that respect.
10. Having looked at the Appellant’s Petition of Appeal, his Written
Submissions and those of the Respondent, it appeared to this Court
HCCRA NO E031 OF 2025 3
that the issues that had been placed before it for determination were as
follows:-
a. Whether or not the Prosecution proved its case beyond reasonable
doubt; and
b. Whether or not in the circumstances of this case, the sentence that
was meted upon the Appellant herein by the Trial Court was lawful
and/or warranted.
11. The Court dealt with the said issues under the following distinct and
separate heads.
Proof of Prosecution Case
12. Grounds of Appeal Nos (1), (2), (3), (4) and (5) were dealt under this
head.
13. The Appellant reproduced the evidenced of PW 1 and PW 2 and
submitted that the time was too short for identification despite the
presence of security light and outside bulb, PW 1 and PW 2 could not
identify positively the attackers who had a panga and an iron bar.
Hence the time under observation was short for positive identification.
He blamed PW 1 for having reported at first that she could not identify
her attackers that material night. In this regard, he placed reliance on
the case of Kiarie vs Republic (eKLR citation not given) where it was
held that it was possible for witness to be honest but mistaken and for
a number of witnesses be all mistaken.
14. He also faulted PW 1 and PW 2 for not describing his appearance to the
authority on their first report. To buttress his point, he relied on the
case of Maitanyi vs Republic (1986) KLR 198 where it was held that
if a witness receives a very strong impression of the features of the
assailant, the witness will usually be able to give some description and
if on the other hand the witness says that he or she could not identify
or recognize the person, then a later identification or recognition must
be suspect unless explained.
15. He argued that the identification was conducted without fairness as the
parade officer did not inform him of his right to call a friend or solicitor
to be present during the identification parade and that PW 1 and PW 2
HCCRA NO E031 OF 2025 4
did not give the description of their assailant nor report that they could
identify them if they were made to see them in their first report. In this
regard, he cited the cases of Nathan Kamau Mugwe vs Republic
Criminal Appeal No 63 of 2008 and Gabriel K. Njoroge vs Republic
(1982-88) 1 KAR 1134.
16. He argued that nothing belonging to the complainant was recovered
from him and that he was arrested from his home and there was no
evidence on record that he went on hiding after the incident. He added
that the 1st Accused person at the trial Court (his co-accused) was a
psychiatric hence his oral evidence and confession that led to his arrest
was not reliable. He argued that he was not given a chance to cross-
examine the said co-accused to test the veracity of his confession. In
this regard, he relied on the case of Kiarie & Another vs Republic
(1986) KLR 281 where it was held that there was fatal failure on the
part of the trial magistrate to inform and accord the appellant of his
right to cross-examine the appellant which resulted into a miscarriage
of justice.
17. He further argued that the trial Court erred in not complying with
Section 214(i), (ii) of the Criminal Procedure Code after amendment of
the charge. He placed reliance on the cases of Yongo vs Republic
(1983) KLR 319 and Harrison Murungu Njuguna vs Republic
Criminal Appeal No 90 of 2004 where it was held that it was vital for
the witnesses to be recalled to re-identify the accused persons in their
new position.
18. He pointed out that in his case, the charge sheet was read to the
appellant a fresh and plea of not guilty taken but the trial Court failed
to inform him of his right given to him by the law to recall witnesses to
give evidence a fresh on the amended charges or to cross-examine the
witnesses further, hence not curable under Section 382 of Criminal
Procedure Code. He argued that therefore the proceedings were fatally
defective.
19. On its part, the Respondent placed reliance on the cases of Johanna
Ndung’u vs Republic Criminal Appeal No 116 of 2005 (unreported)
and Oluoch vs Republic[1985]KLR where it was held that robbery was
HCCRA NO E031 OF 2025 5
committed where the offender was armed with any dangerous and
offensive weapon or instrument or the offender was in company with
one or more person or persons or 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.
20. It asserted that it was also crucial in addition to there being one of the
set-out ingredient of robbery with violence was the need to positively
identify the assailants in question as held in the case of Suleiman
Kamau Nyambura and Republic Criminal Appeal No 5 of 2013.
21. It also placed reliance on the case of Wahungu vs Republic[1989] KLR
424 where it was held that evidence of visual identification in criminal
cases could bring about miscarriage of justice and it was of vital
importance that such evidence was examined carefully to minimize this
danger and the case of R vs Turnbull [1977] QB 224 where it was held
that if the quality of the identification evidence was good and remained
good at the close of the accused’s case, the danger of mistaken
identification was lessened, but that the poorer the quality the greater
the danger.
22. It was emphatic that the prosecution proved the case beyond
reasonable doubt. It urged the Court to dismiss the appeal herein.
23. PW 1, WILBERFORCE KEDOGO ATONYA, testified that on the
material day of 10th October 2023 at 5.00a.m, he was at his house at
Mazungulu with his family who were still asleep when he heard noise
from the other room. Her sister was screaming at the shop asking for
help she said, “please do not cut her, she is a small child, if its money
let me give you”. He said that he left his house and went to her sister’s
house using the front door few meters away and tried peeping through
the window.
24. It was his further testimony that there were people standing outside
and there was street light and bulb light was on. He stated that he then
saw three (3) people and when he opened the door they panicked and
they wanted to escape. They were coming towards him and he managed
to hold one and one man and the other came wielding pangas. He said
HCCRA NO E031 OF 2025 6
that they all came cutting him on the head (5) times and hitting him
with an iron rod. He concluded that he had 22 cuts on his body.
25. He stated that as they were attacking him, his wife and children
continued screaming for help. The attack took ten (10) minutes and that
the neighbours came and he lost consciousness. He added that he was
bleeding on the head, chest, shoulders and the whole body was oozing
blood. He was rushed to hospital in Mbale and was treated and
discharged.
26. He further stated that the attackers were four (4) and did not have
masks. He stated that he did not know the attackers before the incident
but he could identify them after the incident. He added that he was able
to identify the Appellant herein together with his co-accused (s) at the
identification parade. He pointed out that they had found a small phone
button at the scene which was on and they did not handle it. The Police
took the phone which was at the scene when they arrived.
27. PW 2, ANNACIATA BARASI RADIMA, testified that on the material
day, she had opened the shop at 5.00a.m as usual and was lighting her
jiko outside. When she got back to the house she met five (5) men
entering into her house that was attached to the shop. The men told
her that they were police officers and that they had been told that she
sells cigarettes. She stated that they were in plain clothes and did not
have face masks
28. Three of the men pushed her into the shop asking if she was selling
cigarretes, one of them tried opening the store and placed a padlock,
three (3) of the men pulled their shirts and removed pangas and metal
rods. They were all armed. They asked for money as they ransacked her
bags and shelves removing shop items and bags contents. She said that
she told them that she had money and gave them. They took Kshs
17,000/= from her bag and airtime and goods from the shop. When she
tried screaming one of them hit her with a panga on the head.
29. They went to another room and wanted to kill a child but she told them
not to kill him. They went back to the shop and asked for money and
PW 1 came to the veranda. She said that she was held by two of them
and one had left to attack her brother. The two then released her and
HCCRA NO E031 OF 2025 7
started attacking her brother. She screamed that robbers were killing
her brother and a boda boda rider stopped and came to the scene and
the robber escaped.
30. She corroborated the evidence of PW 1 that he was cut on the head,
hands and back and was severely injured. She also stated that they
found the phone at the scene and that she did not know the attackers
before the incident but identified them at the identification parade.
31. PW 3, EMILY MUGASIA, testified that she was a neighbor and a village
elder. She confirmed that she went to the shop that morning and found
PW 1 injured and PW 2 told her that they had been attacked and the
shop robbed.
32. PW 4, NO 82260 CORPORAL SUMMY SANCHU, the investigating
officer’s evidence corroborated that of PW 1, PW 2 and PW 3. He added
that when they visited the scene they found the place had blood
sprinkled all over and a phone IMEI No 351528042803325 Airtel Line
07844728074 that they used for their investigations. He added that
they did a phone analysis that led them to one Bonface who took them
to the Accused persons. When they ransacked his house, they found
axe, panga and several phones, they took the items to the police station
and arraigned the accused persons. He said that the panga was used
to cut PW 1 and the metal rod was used to break doors. He produced
the panga and the metal rod as exhibits in Court.
33. PW 5, BOAZ ALION, Clinical Officer, confirmed having treated PW 1.
He noted that he had several fractures on front, side and back, outer
scalp had cuts and the head had eight (8) cuts, right ear cut and in total
had 22 cuts and stitched. He produced a P3 form as exhibit in this case.
34. Notably, PW 1 and PW 2 confirmed that although they did not know
their attackers before the incident, they could identify them after the
incident. PW 1 noted that there was street light and bulb light thus
sufficient lighting conditions. PW 1 and PW 2 also noted that the
attackers were not in face masks. PW 2 confirmed that she kept moving
with them from one room to another and PW 1 noted that the incident
took about ten (10) minutes. That was sufficient time for PW 1 and PW
2 not to have been mistaken about their faces.
HCCRA NO E031 OF 2025 8
35. In addition, PW 1 and PW 2 were able to identify the Appellant at the
identification parade.
36. It was therefore clear from the evidence that was adduced by the
Prosecution that PW 1 and PW 2 positively identified the Appellant as
having been one of the attackers on the material night. His argument
that the Prosecution failed in conducting an identification parade
therefore fell on the way side.
37. The fact that a phone was recovered at the scene and the same was
used to trace the attackers squarely placed the Appellant herein as one
of the perpetrators on those material nights.
38. Turning to the issue of whether or not the Prosecution demonstrated
the elements of the offence of robbery with violence herein, Section 295
of the Penal Code stipulates that the elements of robbery with violence
are :-
a. That the offender is armed with any dangerous weapon or
offensive weapon or instrument;
b. That the offender is in the company of one or more persons;
c. That 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.
39. PW 1 and PW 2 confirmed having seen their attackers with pangas and
metal rod. It was evident from the evidence of both PW 1 and PW 2 that
the Appellant was in the company of others during the attacks. There
was robbery. Indeed, PW 1 testified that the Appellant and his Co-
Accused persons robbed her of Kshs 17,000/=, airtime and goods from
the shop.
40. It was clear from the aforesaid evidence that the Appellant was in the
company of his Co-Accused persons. They were armed with a sharp
object and that during, immediately before and after the offence they
wounded PW 1. They slapped PW 2 with a panga on the head and
robbed them of the items from the shop.
41. The chain of events was unbroken. The Trial Court thus proceeded
correctly when it found that all the ingredients of proving the offence of
HCCRA NO E031 OF 2025 9
robbery with violence had been satisfied and hence convicted him
accordingly.
42. Going further, Section 214 (1)(i) of Criminal Procedure Code Cap 75
(Laws of Kenya) stipulates that:-
“Where, at any stage of a trial before the close of the case for the
prosecution, it appears to the Court that the charge is defective,
either in substance or in form, the Court may make such order for
the alteration of the charge, either by way of amendment of the
charge or by the substitution or addition of a new charge, as the
Court thinks necessary to meet the circumstances of the case:
Provided that where a charge is so altered, the Court shall
thereupon call upon the accused person to plead to the altered
charge”
43. Notably, a perusal of the proceedings herein indicated that the Charge
Sheet was amended on 1st September 2025 and the Appellant was
subjected to taking of plea afresh and a plea of not guilty entered. The
Trial Court did not indicate whether it notified the Appellant his right
to recall witnesses.
44. Be that as it may, the amendment was done to delete the name of the
1st Accused person who had been discharged under Section 87A of the
Criminal Procedure Code to assist him seek treatment.
45. To the mind of this Court, the amendment did not affect the flow of
evidence in any way to warrant the recall of witnesses, thus the
proceedings were not defective in the circumstances.
46. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4) and (5)
of the Petition of Appeal were not merited and the same be and are
hereby dismissed.
Sentencing
47. The Appellant did not raise any ground of appeal on this issue but
submitted on the same. The Respondent did not submit on the issue of
sentencing. This Court found it prudent to determine the issue for
completeness of record.
HCCRA NO E031 OF 2025 10
48. Notably, the Appellant was found guilty of the offence of robbery with
violence. Section 295 of the Penal Code states that:-
“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.”
49. Further, Section 296 (1) and (2) of the Penal Code provides as follows:-
a) Any person who commits the felony of robbery is liable to
imprisonment for fourteen years.
b) 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.
50. The Trial Court sentenced the Appellant to twenty-five (25) years
imprisonment. In the mind of this Court, the Trial Court was lenient as
it had the option of sentencing him to death.
51. The guiding principles on review of sentence post-conviction is well
articulated by the Court of Appel in the case of Benard Kimani
Gacheru vs. Republic [2002] eKLR:
“It is now settled law, following several authorities by this Court
and by the High Court, that sentence is a matter that rests in the
discretion of the trial Court. Similarly, sentence must depend on
the facts of each case. on appeal, the appellate court will not easily
interfere with sentence unless, that sentence is manifestly
excessive in the circumstances of the case, or that the trial court
overlooked some material factor, or took into account some wrong
material, or acted on a wrong principle. Even if, the Appellate Court
feels that the sentence is heavy and that the Appellate Court might
itself not have passed that sentence, these alone are not sufficient
grounds for interfering with the discretion of the trial court on
sentence unless, anyone of the matters already states is shown to
exist.”
HCCRA NO E031 OF 2025 11
52. What this means primarily is that an appeal’s court can only review a
sentence found to be illegal, irregular or not in accordance with justice.
The Appellant in his appeal has not demonstrated by way of evidence
or any provisions of the law that the sentence in question which
imposed by the trial court is irregular, wrong in principle and not within
the legislative scheme provided for in the Act during the enactment of
the law.
53. In view of the seriousness and gravity of the circumstances surrounding
the commission of the offence as stated by the Prosecution witnesses
particularly the victims of the offence in respect of that situation at
hand involving the accused person and his co-perpetrators there are no
compelling and substantial circumstances in which this sentence can
be reduced to a lesser term as submitted by the Appellant. Therefore,
the power of review of sentence lacks merit and as also with the ground
on conviction the appeal is also lost on the same strength.
Disposition
54. Consequently, the following orders shall abide:
(a) That the proceedings in the matter before the Court were held in
accordance with justice.
(b) That the conviction and sentence are hereby affirmed by this appeal’s
Court.
(c) That the Appellant has a right of appeal to the Court of appeal
(d) Orders accordingly.
DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.
………………………………..
R. NYAKUNDI
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL APPEAL NO. E031 OF 2025
EVANS OSANGO………………………………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………………………RESPONDENT
(Being an Appeal from the Judgment of Hon J. A. Agonda (SPM) delivered at
Vihiga in Senior Principal Magistrate’s Court in Criminal Case No E788 of
2023 on 3rd December 2025)
Coram: Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
JUDGMENT
1. The Appellant herein was charged jointly with three (3) others not before
this Court with the offence of robbery with violence contrary to Section
296 (2) of the Penal Code Cap 63 (Laws of Kenya) on count I.
2. The particulars were that on the night of 10th October, 2023 at Masigulu
Village, Chango Sub-location Central Maragoli, Vihiga County jointly
with others not before the Court while armed with dangerous weapons
namely pangas robbed Annaciata Barusi Kadima Kshs 17,000/= and
immediately after the time of such robbery injured one Wilberforce
Kedogo.
3. He was also charged of the offense of grievous harm contrary to Section
234 of the Penal Code Cap 63 (Laws of Kenya) on count II.
4. The particulars were that on 10th October, 2023 at Masigulu Village,
Chango Sub-Location Central Maragoli, Vihiga County jointly with
others not before the Court while armed with dangerous weapons
unlawfully did grievous harm to Atonya Wilberforce.
5. He was tried and convicted of the two (2) offences and was sentenced to
twenty-five (25) years imprisonment.
6. Being dissatisfied with the said Judgement, on 23rd December 2025, he
lodged the Appeal herein. The same was dated 22nd December 2025. He
set out five (5) Grounds of Appeal as follows:-
HCCRA NO E031 OF 2025 2
a) That the trial Court erred in law and in fact in not making a finding
that the ingredients of robbery with violence were not proved
beyond reasonable doubt.
b) That the trial Court erred in law and in fact in breaching the
Appellant’s Constitutional rights hence occasioning a miscarriage
of justice.
c) That the trial Court erred in law and fact in admitting evidence that
was obtained in a manner that was detrimental to justice hence
unfair trial.
d) That the trial Court erred in law and fact in not weighing the
conflicting prosecution evidence which were consequential to
conviction.
e) That the trial Court erred in law and in fact in not considering
procedural errors which were inconsequential to conviction.
7. His Written Submissions were dated 19th March 2026 and filed on 23rd
March 2026 while those of the Respondent were dated 22nd April 2026
and filed on 13th May 2026. The Judgment herein is based on the said
Written Submissions which both parties relied upon in their entirety.
Analysis and Determination
8. It is settled law that the duty of a first appellate Court is to evaluate
afresh the evidence adduced before the trial Court in order to arrive at
its own independent conclusion but bearing in mind that it neither saw
nor heard the witnesses testify.
9. This was aptly stated in the case of Selle & Another vs Associated
Motor Boat Co. Ltd & Others [1968] EA 123 where the Court therein
held that the appellate Court was not bound by the findings of fact of
the trial Court but that in re-considering and re-evaluating the evidence
so as to draw its own conclusions, it always had to bear in mind that it
neither saw nor heard the witnesses testify and thus make due
allowance in that respect.
10. Having looked at the Appellant’s Petition of Appeal, his Written
Submissions and those of the Respondent, it appeared to this Court
HCCRA NO E031 OF 2025 3
that the issues that had been placed before it for determination were as
follows:-
a. Whether or not the Prosecution proved its case beyond reasonable
doubt; and
b. Whether or not in the circumstances of this case, the sentence that
was meted upon the Appellant herein by the Trial Court was lawful
and/or warranted.
11. The Court dealt with the said issues under the following distinct and
separate heads.
Proof of Prosecution Case
12. Grounds of Appeal Nos (1), (2), (3), (4) and (5) were dealt under this
head.
13. The Appellant reproduced the evidenced of PW 1 and PW 2 and
submitted that the time was too short for identification despite the
presence of security light and outside bulb, PW 1 and PW 2 could not
identify positively the attackers who had a panga and an iron bar.
Hence the time under observation was short for positive identification.
He blamed PW 1 for having reported at first that she could not identify
her attackers that material night. In this regard, he placed reliance on
the case of Kiarie vs Republic (eKLR citation not given) where it was
held that it was possible for witness to be honest but mistaken and for
a number of witnesses be all mistaken.
14. He also faulted PW 1 and PW 2 for not describing his appearance to the
authority on their first report. To buttress his point, he relied on the
case of Maitanyi vs Republic (1986) KLR 198 where it was held that
if a witness receives a very strong impression of the features of the
assailant, the witness will usually be able to give some description and
if on the other hand the witness says that he or she could not identify
or recognize the person, then a later identification or recognition must
be suspect unless explained.
15. He argued that the identification was conducted without fairness as the
parade officer did not inform him of his right to call a friend or solicitor
to be present during the identification parade and that PW 1 and PW 2
HCCRA NO E031 OF 2025 4
did not give the description of their assailant nor report that they could
identify them if they were made to see them in their first report. In this
regard, he cited the cases of Nathan Kamau Mugwe vs Republic
Criminal Appeal No 63 of 2008 and Gabriel K. Njoroge vs Republic
(1982-88) 1 KAR 1134.
16. He argued that nothing belonging to the complainant was recovered
from him and that he was arrested from his home and there was no
evidence on record that he went on hiding after the incident. He added
that the 1st Accused person at the trial Court (his co-accused) was a
psychiatric hence his oral evidence and confession that led to his arrest
was not reliable. He argued that he was not given a chance to cross-
examine the said co-accused to test the veracity of his confession. In
this regard, he relied on the case of Kiarie & Another vs Republic
(1986) KLR 281 where it was held that there was fatal failure on the
part of the trial magistrate to inform and accord the appellant of his
right to cross-examine the appellant which resulted into a miscarriage
of justice.
17. He further argued that the trial Court erred in not complying with
Section 214(i), (ii) of the Criminal Procedure Code after amendment of
the charge. He placed reliance on the cases of Yongo vs Republic
(1983) KLR 319 and Harrison Murungu Njuguna vs Republic
Criminal Appeal No 90 of 2004 where it was held that it was vital for
the witnesses to be recalled to re-identify the accused persons in their
new position.
18. He pointed out that in his case, the charge sheet was read to the
appellant a fresh and plea of not guilty taken but the trial Court failed
to inform him of his right given to him by the law to recall witnesses to
give evidence a fresh on the amended charges or to cross-examine the
witnesses further, hence not curable under Section 382 of Criminal
Procedure Code. He argued that therefore the proceedings were fatally
defective.
19. On its part, the Respondent placed reliance on the cases of Johanna
Ndung’u vs Republic Criminal Appeal No 116 of 2005 (unreported)
and Oluoch vs Republic[1985]KLR where it was held that robbery was
HCCRA NO E031 OF 2025 5
committed where the offender was armed with any dangerous and
offensive weapon or instrument or the offender was in company with
one or more person or persons or 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.
20. It asserted that it was also crucial in addition to there being one of the
set-out ingredient of robbery with violence was the need to positively
identify the assailants in question as held in the case of Suleiman
Kamau Nyambura and Republic Criminal Appeal No 5 of 2013.
21. It also placed reliance on the case of Wahungu vs Republic[1989] KLR
424 where it was held that evidence of visual identification in criminal
cases could bring about miscarriage of justice and it was of vital
importance that such evidence was examined carefully to minimize this
danger and the case of R vs Turnbull [1977] QB 224 where it was held
that if the quality of the identification evidence was good and remained
good at the close of the accused’s case, the danger of mistaken
identification was lessened, but that the poorer the quality the greater
the danger.
22. It was emphatic that the prosecution proved the case beyond
reasonable doubt. It urged the Court to dismiss the appeal herein.
23. PW 1, WILBERFORCE KEDOGO ATONYA, testified that on the
material day of 10th October 2023 at 5.00a.m, he was at his house at
Mazungulu with his family who were still asleep when he heard noise
from the other room. Her sister was screaming at the shop asking for
help she said, “please do not cut her, she is a small child, if its money
let me give you”. He said that he left his house and went to her sister’s
house using the front door few meters away and tried peeping through
the window.
24. It was his further testimony that there were people standing outside
and there was street light and bulb light was on. He stated that he then
saw three (3) people and when he opened the door they panicked and
they wanted to escape. They were coming towards him and he managed
to hold one and one man and the other came wielding pangas. He said
HCCRA NO E031 OF 2025 6
that they all came cutting him on the head (5) times and hitting him
with an iron rod. He concluded that he had 22 cuts on his body.
25. He stated that as they were attacking him, his wife and children
continued screaming for help. The attack took ten (10) minutes and that
the neighbours came and he lost consciousness. He added that he was
bleeding on the head, chest, shoulders and the whole body was oozing
blood. He was rushed to hospital in Mbale and was treated and
discharged.
26. He further stated that the attackers were four (4) and did not have
masks. He stated that he did not know the attackers before the incident
but he could identify them after the incident. He added that he was able
to identify the Appellant herein together with his co-accused (s) at the
identification parade. He pointed out that they had found a small phone
button at the scene which was on and they did not handle it. The Police
took the phone which was at the scene when they arrived.
27. PW 2, ANNACIATA BARASI RADIMA, testified that on the material
day, she had opened the shop at 5.00a.m as usual and was lighting her
jiko outside. When she got back to the house she met five (5) men
entering into her house that was attached to the shop. The men told
her that they were police officers and that they had been told that she
sells cigarettes. She stated that they were in plain clothes and did not
have face masks
28. Three of the men pushed her into the shop asking if she was selling
cigarretes, one of them tried opening the store and placed a padlock,
three (3) of the men pulled their shirts and removed pangas and metal
rods. They were all armed. They asked for money as they ransacked her
bags and shelves removing shop items and bags contents. She said that
she told them that she had money and gave them. They took Kshs
17,000/= from her bag and airtime and goods from the shop. When she
tried screaming one of them hit her with a panga on the head.
29. They went to another room and wanted to kill a child but she told them
not to kill him. They went back to the shop and asked for money and
PW 1 came to the veranda. She said that she was held by two of them
and one had left to attack her brother. The two then released her and
HCCRA NO E031 OF 2025 7
started attacking her brother. She screamed that robbers were killing
her brother and a boda boda rider stopped and came to the scene and
the robber escaped.
30. She corroborated the evidence of PW 1 that he was cut on the head,
hands and back and was severely injured. She also stated that they
found the phone at the scene and that she did not know the attackers
before the incident but identified them at the identification parade.
31. PW 3, EMILY MUGASIA, testified that she was a neighbor and a village
elder. She confirmed that she went to the shop that morning and found
PW 1 injured and PW 2 told her that they had been attacked and the
shop robbed.
32. PW 4, NO 82260 CORPORAL SUMMY SANCHU, the investigating
officer’s evidence corroborated that of PW 1, PW 2 and PW 3. He added
that when they visited the scene they found the place had blood
sprinkled all over and a phone IMEI No 351528042803325 Airtel Line
07844728074 that they used for their investigations. He added that
they did a phone analysis that led them to one Bonface who took them
to the Accused persons. When they ransacked his house, they found
axe, panga and several phones, they took the items to the police station
and arraigned the accused persons. He said that the panga was used
to cut PW 1 and the metal rod was used to break doors. He produced
the panga and the metal rod as exhibits in Court.
33. PW 5, BOAZ ALION, Clinical Officer, confirmed having treated PW 1.
He noted that he had several fractures on front, side and back, outer
scalp had cuts and the head had eight (8) cuts, right ear cut and in total
had 22 cuts and stitched. He produced a P3 form as exhibit in this case.
34. Notably, PW 1 and PW 2 confirmed that although they did not know
their attackers before the incident, they could identify them after the
incident. PW 1 noted that there was street light and bulb light thus
sufficient lighting conditions. PW 1 and PW 2 also noted that the
attackers were not in face masks. PW 2 confirmed that she kept moving
with them from one room to another and PW 1 noted that the incident
took about ten (10) minutes. That was sufficient time for PW 1 and PW
2 not to have been mistaken about their faces.
HCCRA NO E031 OF 2025 8
35. In addition, PW 1 and PW 2 were able to identify the Appellant at the
identification parade.
36. It was therefore clear from the evidence that was adduced by the
Prosecution that PW 1 and PW 2 positively identified the Appellant as
having been one of the attackers on the material night. His argument
that the Prosecution failed in conducting an identification parade
therefore fell on the way side.
37. The fact that a phone was recovered at the scene and the same was
used to trace the attackers squarely placed the Appellant herein as one
of the perpetrators on those material nights.
38. Turning to the issue of whether or not the Prosecution demonstrated
the elements of the offence of robbery with violence herein, Section 295
of the Penal Code stipulates that the elements of robbery with violence
are :-
a. That the offender is armed with any dangerous weapon or
offensive weapon or instrument;
b. That the offender is in the company of one or more persons;
c. That 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.
39. PW 1 and PW 2 confirmed having seen their attackers with pangas and
metal rod. It was evident from the evidence of both PW 1 and PW 2 that
the Appellant was in the company of others during the attacks. There
was robbery. Indeed, PW 1 testified that the Appellant and his Co-
Accused persons robbed her of Kshs 17,000/=, airtime and goods from
the shop.
40. It was clear from the aforesaid evidence that the Appellant was in the
company of his Co-Accused persons. They were armed with a sharp
object and that during, immediately before and after the offence they
wounded PW 1. They slapped PW 2 with a panga on the head and
robbed them of the items from the shop.
41. The chain of events was unbroken. The Trial Court thus proceeded
correctly when it found that all the ingredients of proving the offence of
HCCRA NO E031 OF 2025 9
robbery with violence had been satisfied and hence convicted him
accordingly.
42. Going further, Section 214 (1)(i) of Criminal Procedure Code Cap 75
(Laws of Kenya) stipulates that:-
“Where, at any stage of a trial before the close of the case for the
prosecution, it appears to the Court that the charge is defective,
either in substance or in form, the Court may make such order for
the alteration of the charge, either by way of amendment of the
charge or by the substitution or addition of a new charge, as the
Court thinks necessary to meet the circumstances of the case:
Provided that where a charge is so altered, the Court shall
thereupon call upon the accused person to plead to the altered
charge”
43. Notably, a perusal of the proceedings herein indicated that the Charge
Sheet was amended on 1st September 2025 and the Appellant was
subjected to taking of plea afresh and a plea of not guilty entered. The
Trial Court did not indicate whether it notified the Appellant his right
to recall witnesses.
44. Be that as it may, the amendment was done to delete the name of the
1st Accused person who had been discharged under Section 87A of the
Criminal Procedure Code to assist him seek treatment.
45. To the mind of this Court, the amendment did not affect the flow of
evidence in any way to warrant the recall of witnesses, thus the
proceedings were not defective in the circumstances.
46. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4) and (5)
of the Petition of Appeal were not merited and the same be and are
hereby dismissed.
Sentencing
47. The Appellant did not raise any ground of appeal on this issue but
submitted on the same. The Respondent did not submit on the issue of
sentencing. This Court found it prudent to determine the issue for
completeness of record.
HCCRA NO E031 OF 2025 10
48. Notably, the Appellant was found guilty of the offence of robbery with
violence. Section 295 of the Penal Code states that:-
“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.”
49. Further, Section 296 (1) and (2) of the Penal Code provides as follows:-
a) Any person who commits the felony of robbery is liable to
imprisonment for fourteen years.
b) 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.
50. The Trial Court sentenced the Appellant to twenty-five (25) years
imprisonment. In the mind of this Court, the Trial Court was lenient as
it had the option of sentencing him to death.
51. The guiding principles on review of sentence post-conviction is well
articulated by the Court of Appel in the case of Benard Kimani
Gacheru vs. Republic [2002] eKLR:
“It is now settled law, following several authorities by this Court
and by the High Court, that sentence is a matter that rests in the
discretion of the trial Court. Similarly, sentence must depend on
the facts of each case. on appeal, the appellate court will not easily
interfere with sentence unless, that sentence is manifestly
excessive in the circumstances of the case, or that the trial court
overlooked some material factor, or took into account some wrong
material, or acted on a wrong principle. Even if, the Appellate Court
feels that the sentence is heavy and that the Appellate Court might
itself not have passed that sentence, these alone are not sufficient
grounds for interfering with the discretion of the trial court on
sentence unless, anyone of the matters already states is shown to
exist.”
HCCRA NO E031 OF 2025 11
52. What this means primarily is that an appeal’s court can only review a
sentence found to be illegal, irregular or not in accordance with justice.
The Appellant in his appeal has not demonstrated by way of evidence
or any provisions of the law that the sentence in question which
imposed by the trial court is irregular, wrong in principle and not within
the legislative scheme provided for in the Act during the enactment of
the law.
53. In view of the seriousness and gravity of the circumstances surrounding
the commission of the offence as stated by the Prosecution witnesses
particularly the victims of the offence in respect of that situation at
hand involving the accused person and his co-perpetrators there are no
compelling and substantial circumstances in which this sentence can
be reduced to a lesser term as submitted by the Appellant. Therefore,
the power of review of sentence lacks merit and as also with the ground
on conviction the appeal is also lost on the same strength.
Disposition
54. Consequently, the following orders shall abide:
(a) That the proceedings in the matter before the Court were held in
accordance with justice.
(b) That the conviction and sentence are hereby affirmed by this appeal’s
Court.
(c) That the Appellant has a right of appeal to the Court of appeal
(d) Orders accordingly.
DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.
………………………………..
R. NYAKUNDI
JUDGE