1. The Appellants herein, Francis Ouru Oruko, Job Morara and Kevin Mogy Thomas, were jointly charged in Nyamira MCCR E1144 of 2023 with the offence of robbery contrary to section 296(2) of the Penal Code. The particulars of the charge as contained in the charge sheet dated 11th December 2023 were that on 30th November 2023 at Nyamira Township in Nyamira South Sub-County within Nyamira County, jointly while armed with dangerous weapons namely a pistol and a hammer, they robbed Faustina Moraa of cash KES.13,000, assorted alcoholic drinks valued at KES.5,000 and that at or immediately before or immediately after the time of such robbery, they used actual violence upon the said Faustina Moraa.
2. The record further shows that the Appellants were arraigned before the trial court on 11th December 2023 where the substance of the charge and every element thereof was read over and explained to them in a language they understood. They each pleaded not guilty and the matter proceeded to full trial.
3. During the hearing, the prosecution called six witnesses in support of its case. PW1, Faustina Moraa, testified that on the night of 30th November 2023 at about 8:45 p.m., she was inside her club at Nyamira Township in the company of PW2, John Joseph Kiage, when three men entered the premises pretending to be customers seeking to buy alcohol. She testified that the premises had electricity lighting which enabled her to clearly observe the persons who entered.
4. The witness stated that the 2nd Appellant approached her and requested to be served alcohol. She testified that shortly thereafter he assaulted her by striking her on the cheek causing her to fall down. She described him as well-built and having dreadlocks. She further testified that the 3rd Appellant wielded a pistol and ordered PW2 to sit down while guarding him throughout the robbery. She described the 3rd Appellant as having sunken eyes. PW1 further testified that the 1st Appellant carried a bag and moved around the premises collecting phones, money, keys, alcoholic drinks and a radio. She described him as having a missing tooth and a wide face.
5. The witness additionally testified that the robbery lasted for approximately ten to fifteen minutes and that she was therefore able to observe the attackers closely throughout the incident. She further testified that she later attended an identification parade where she positively identified the Appellants based on the physical features she had observed during the robbery.
6. PW2, John Joseph Kiage, testified that the 2nd Appellant is the person who first approached PW1 pretending to be a customer before assaulting her. He further testified that the 3rd Appellant pointed a pistol at him and ordered him to sit down while the robbery continued. PW2 also confirmed that the 1st Appellant actively participated in collecting the stolen items from the premises. PW2 similarly testified that the premises were well lit with electricity lighting and that the assailants remained inside the club for between ten to fifteen minutes.
7. He stated that he therefore had sufficient opportunity to observe each of them. He further testified that he subsequently attended an identification parade and positively identified the Appellants.
8. PW3, Dr. Kennedy Masara of Nyamira Referral Hospital, testified and produced P3 forms, treatment notes and medical examination reports relating to PW1 and PW4 Mariga Ong’ang’a. He confirmed that PW1 sustained swelling on the face and a cut wound on the parietal region caused by a blunt object while PW4 sustained injuries on the occipital region of the head. The medical summary, treatment notes and medical examination reports formed part of the prosecution exhibits.
9. PW4, Mariga Ong’ang’a testified that he was the security guard stationed at the premises on the material night. He stated that he was attacked by the robbers outside the club and struck on the head before losing consciousness. It was his evidence that one of the attackers carried a pistol.
10. PW5, Inspector Eric Kipkemboi Maiyo, conducted identification parades involving the Appellants on 05th December 2023. He produced the identification parade forms and testified that PW1 and PW2 independently identified the Appellants based on their physical appearance and distinctive features including dreadlocks, a missing tooth and sunken eyes.
11. PW6, Police Constable Eva Moraa, the investigating officer, visited the scene after the robbery, recorded witness statements and conducted investigations which led to the arrest of the Appellants.
12. At the close of the prosecution case, the learned trial magistrate delivered a ruling dated 22nd April 2025 finding that the prosecution had established a prima facie case against the Appellants and accordingly placed them on their defence.
13. In their defence, the Appellants each gave sworn testimony denying involvement in the offence and raising alibi defences.
14. The 1st Appellant testified that on 30th November 2023 he was at home in Egesieri Bomanyanga Sub-location where he spent the day making charcoal from about 7:00 a.m. until 6:00 p.m. He stated that after bathing and taking supper, he went to sleep at about 9:00 p.m. He testified that on 03rd December 2023 village elders went to his home and escorted him to Nyamira Police Station where he was arrested and later subjected to an identification parade. He denied participating in the robbery and denied possession of any firearm. He further testified that the investigating officer participated in the identification parade and directed the complainants during the exercise.
15. In support of the 1st Appellant’s defence, DW1 Gladys Bosibori Ouru, his mother, testified that the 1st Appellant spent the material day at home making charcoal and did not leave the homestead. She stated that he had no firearm and that village elders later arrested him from home before handing him over to the police.
16. The 2nd Appellant, testified that on 30th November 2023 he was at his home in Rang’enyo where he spent the night with his wife and child after attending to his vegetable farm during the day. He testified that on 02nd December 2023 he was arrested at a pool table in Nyabite by police officers in civilian clothes and later taken to Nyamira Police Station. He denied knowing the complainants or the co-accused persons prior to the case and denied participating in the robbery. He further alleged that during the identification parade the complainants had already seen him and that one of the officers directed the complainants towards him before he was identified.
17. The 3rd Appellant, testified that on 30th November 2023 he was in Sondu and on the following day travelled to Kemasare after receiving information that his father was unwell and required hospital treatment. He stated that on 02nd December 2023 he was arrested at his parents’ home by police officers who were accompanied by members of the public. He denied involvement in the robbery and testified that nothing connected to the offence was recovered from him. He further challenged the manner in which the identification parade was conducted and maintained that he did not know the co-accused persons before the arrest.
18. In support of the 3rd Appellant’s defence, DW2 Thomas Nyamuni Gesemba, his father, testified that the 3rd Appellant arrived home on 01st December 2023 after travelling from Sondu because he had been informed that his father was unwell. He stated that the police later arrested the 3rd Appellant from home and searched the compound but did not recover any of the stolen items allegedly connected to the robbery.
19. Upon considering the evidence before it, the trial court delivered judgment dated 08th September 2025, found that the prosecution had proved the offence of robbery contrary to section 296(2) of the Penal Code beyond reasonable doubt, convicted the Appellants and sentenced each of them to suffer death.
20. Aggrieved by both conviction and sentence, the Appellants filed the present appeal through the Memorandum of Appeal dated 16th September 2025 raising the following grounds of appeal:
i. That the learned trial magistrate erred in law and fact in denying the Appellants bond pending trial contrary to Article 49(1)(h) of the Constitution.
ii. That the learned trial magistrate erred in law and fact by failing to set the accused persons at liberty pending trial despite the constitutional right to bail and the absence of compelling reasons.
iii. That the learned trial magistrate erred in relying on a shallow probation report which disclosed no lawful basis for denial of bond.
iv. That the complainant had only opposed bond in respect of one accused person yet the court denied bond to all the accused persons.
v. That the learned trial magistrate erred in denying bond despite the probation report not finding the accused persons to be flight risks or persons with previous convictions.
vi. That the learned trial magistrate generally erred in law and fact in denying the Appellants bond.
vii. That the learned trial magistrate erred in convicting the Appellants on identification evidence where the accused persons had not been described prior to the identification parade, thereby rendering the identification mere dock identification.
viii. That the learned trial magistrate erred in convicting the Appellants despite there being no evidence that separate identification parades were conducted for each Appellant.
ix. That the learned trial magistrate erred in finding that the accused persons acted together despite there being no evidence that they knew each other before or during the robbery.
x. That the learned trial magistrate erred in imposing the death sentence despite the alleged identification evidence being irregular and unreliable.
xi. That the learned trial magistrate erred in failing to appreciate the impropriety of the identification parade, particularly because the investigating officer already knew some of the accused persons prior to the parade.
xii. That the learned trial magistrate erred in failing to consider contradictions in the prosecution case, particularly regarding the circumstances and places of arrest of the accused persons.
xiii. That the learned trial magistrate erred in imposing the death sentence without calling crucial witnesses including the Chief and arresting officers to testify.
xiv. That the learned trial magistrate erred in convicting the Appellants despite no stolen items, weapons or forensic evidence being recovered from them.
xv. That the learned trial magistrate erred in sentencing the Appellants to death despite the evidence allegedly showing that they were separately arrested and were not known to each other.
xvi. That the learned trial magistrate erred in failing to consider a lesser sentence and the possibility of non-complicit or incidental involvement by the Appellants.
xvii. That the learned trial magistrate failed to appreciate the risk of wrongful conviction given the admissions made by the investigating officer and other witnesses regarding the identification parade and prior knowledge of the suspects.
xviii. That the learned trial magistrate erred by shifting the burden of proof to the Appellants instead of placing it upon the prosecution.
xix. That the learned trial magistrate erred in denying the Appellants bond and/or cash bail.
xx. That the learned trial magistrate generally erred in law and fact in convicting the Appellants.
xxi. That the learned trial magistrate generally erred in law and fact in sentencing the Appellants to death.
21. Having carefully reconsidered the entire record of appeal, the proceedings before the trial court, the judgment appealed against, the Memorandum of Appeal dated 16th September 2025, the Appellants’ amended written submissions dated 16th March 2026 and the victims’ written submissions dated 27th April 2026, together with all the authorities cited by the parties, the following issues arise for determination:
1) Whether the prosecution proved all the ingredients of the offence of robbery contrary to section 296(2) of the Penal Code beyond reasonable doubt.
2) Whether the Appellants were positively identified as the persons who committed the offence.
3) Whether the contradictions, omissions and alleged inconsistencies in the prosecution case rendered the conviction unsafe.
4) Whether the prosecution failed to call necessary witnesses
5) Whether the prosecution established common intention and joint participation on the part of the Appellants.
6) Whether the alibi defences raised by the Appellants displaced the prosecution case or raised reasonable doubt.
7) Whether the burden of proof was improperly shifted to the Appellants.
8) Whether the sentence imposed upon the Appellants was lawful, justified and proportionate in the circumstances.
9) Whether the denial of bond pending trial violated the Appellants’ constitutional rights and if so whether the issue remains justiciable after conviction and sentence.
22. Before addressing the foregoing issues, it is necessary to restate the duty of this court as a first appellate court. The victims relied on the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 where the former East African Court of Appeal held that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The same principle was reiterated in Okeno v Republic [1972] EA 32 where the court emphasized that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and arrive at its own independent conclusions.
23. Guided by the foregoing principles, this court has carefully re-evaluated the entire evidence tendered before the trial court, the exhibits produced, the rival submissions filed by the parties and all the authorities cited.
24. The first issue for determination is whether the prosecution proved all the ingredients of the offence of robbery contrary to section 296(2) of the Penal Code beyond reasonable doubt.
25. The Appellants submitted that the prosecution failed to discharge the burden of proof and that the learned trial magistrate improperly shifted the burden onto them. In support of that submission, the Appellants relied on the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462 where the House of Lords held that throughout the web of English criminal law one golden thread is always to be seen, namely that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt and that burden never shifts save in a few statutory exceptions.
26. The Appellants further relied on Sawe v Republic [2003] KLR 364 where the Court of Appeal held that suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
27. I respectfully adopt the principles enunciated in the foregoing authorities and reiterate that, as already stated hereinabove, the legal burden of proof in criminal proceedings rests at all times upon the prosecution and does not shift to an accused person. The prosecution is therefore required to establish the charge against the Appellants beyond reasonable doubt.
28. Section 296(2) of the Penal Code provides that the offence under this section is established where any one of the following ingredients is proved: where the offender is armed with a dangerous or offensive weapon; where the offender is in company with one or more persons; or where at or immediately before or after the robbery the offender wounds, beats or uses personal violence upon the victim.
29. The evidence of PW1, PW2 and PW4 consistently established that the attackers were three in number. PW1 and PW2 testified that one of the assailants carried a pistol while another wielded a hammer. PW1 further testified that she was struck on the cheek and fell down during the robbery. PW4 similarly testified that he was attacked and struck on the head before losing consciousness.
30. The medical evidence adduced through PW3, Dr. Kennedy Masara, corroborated the evidence of violence. The P3 forms and treatment notes confirmed that PW1 sustained swelling on the face and a cut wound on the parietal region caused by a blunt object while PW4 sustained injuries to the head.
31. I therefore find that the prosecution proved beyond reasonable doubt that the robbery was committed by more than one person, that dangerous weapons namely a pistol and hammer were used and that actual violence was inflicted upon PW1 and PW4 during the robbery. Consequently, all the essential ingredients of robbery contrary to section 296(2) of the Penal Code were established.
32. The second issue for determination is whether the Appellants were positively identified as the persons who committed the offence and, in that regard, whether the visual identification evidence was free from the possibility of error, whether the identification parades were properly conducted in accordance with the law and whether the conviction improperly rested on dock identification.
33. The Appellants submitted that the conviction was unsafe because the case turned entirely on visual identification of strangers at night. They argued that none of the witnesses knew them before the incident and that the descriptions allegedly given by the witnesses were ordinary physical features shared by many people. They further argued that the identifying witnesses only described the Appellants after they had already seen them in the dock during trial.
34. The Appellants relied heavily on Wamunga v Republic [1989] KLR 424 where the Court of Appeal warned that evidence of visual identification in criminal cases can bring about miscarriage of justice and that such evidence must therefore be examined with the greatest care particularly where conditions favouring identification are difficult. The Appellants also relied on Roria v Republic [1967] EA 583 where the Court observed that a conviction resting entirely on identity invariably causes a degree of uneasiness and that the danger becomes greater where the only evidence against an accused person is identification by a single witness.
35. The Appellants further relied on R v Turnbull [1977] QB 224 where the English Court of Appeal laid down guidelines requiring courts to examine carefully the circumstances under which identification was made including the lighting, duration of observation, distance, prior acquaintance and possibility of mistake.
36. I am duly guided by the principles enunciated in the foregoing authorities which underscore the need for courts to exercise the greatest caution when dealing with evidence of visual identification, particularly where the case turns on identification of strangers. This court must therefore carefully examine the prevailing circumstances under which the identification was made and satisfy itself that the evidence was free from the possibility of error or mistaken identity.
37. I have carefully reconsidered the evidence of PW1 and PW2. It is common ground that neither PW1 nor PW2 knew any of the Appellants before the robbery. The case therefore turned entirely on visual identification of strangers.
38. PW1 testified that the robbery occurred at about 8:45 p.m. inside her club at Nyamira Township. According to her testimony, the premises had electricity lighting and the assailants remained inside the club for approximately ten to fifteen minutes. She testified that the 2nd Appellant first approached her pretending to be a customer and directly engaged her in conversation while asking to be served alcohol. She stated that she therefore observed him closely before he assaulted her.
39. PW1 further testified that the 3rd Appellant wielded a pistol and guarded PW2 throughout the robbery while the 1stAppellant carried a bag and moved around collecting money, phones, keys and alcoholic drinks. She described the 1st Appellant as having a missing tooth and a wide face, the 2nd Appellant as well-built and having dreadlocks and the 3rd Appellant as having sunken eyes.
40. PW2 corroborated PW1’s evidence in material particulars. He similarly testified that the robbery occurred inside a well-lit club and that the assailants remained there for approximately ten to fifteen minutes. He confirmed that the 2nd Appellant assaulted PW1 while the 3rd Appellant pointed a pistol at him and ordered him to sit down. He also confirmed that the 1st Appellant participated in collecting the stolen property.
41. I have nonetheless carefully considered the Appellants’ submission that the physical descriptions allegedly given by PW1 and PW2 were not sufficiently distinctive since features such as dreadlocks, missing teeth, wide faces and sunken eyes may be shared by many persons within the general population. That argument is not without substance and must be approached with caution, particularly because the case herein turned on visual identification of persons previously unknown to the witnesses. Courts must indeed guard against the danger of convicting accused persons on the basis of vague, broad or generalized descriptions capable of applying to numerous individuals.
42. However, upon a careful re-evaluation of the evidence on record, I am satisfied that the prosecution case did not rest solely upon generalized physical descriptions. PW1 and PW2 each gave detailed and mutually corroborative accounts of the specific role allegedly played by each Appellant during the robbery. PW1 identified the 2nd Appellant as the person who approached her pretending to be a customer before assaulting her, the 3rd Appellant as the person who wielded the pistol and guarded PW2 and the 1st Appellant as the person who carried a bag and collected the stolen items. PW2 substantially corroborated that account and similarly assigned distinct roles to each Appellant.
43. In my view, the consistency in the witnesses’ narration regarding the conduct and role played by each Appellant during the robbery considerably strengthens the reliability of the identification evidence. The witnesses were not merely describing random physical appearances in the abstract; rather, they associated those appearances with specific acts observed during the commission of the offence over a period of approximately ten to fifteen minutes in a lit environment.
44. The Appellants further submitted that the identifying witnesses only described them during the hearing after seeing them in court and that the evidence therefore amounted to dock identification. In support of that argument, they relied on Njoroge v Republic [1987] KLR 19, Ajode v Republic [2004] 2 KLR 81, Gabriel Kamau Njoroge v Republic (1982–88) 1 KAR 1134 and Amolo v Republic [1991] 2 KAR 254.
45. I have carefully considered the foregoing authorities together with the evidence on record. The principles emerging from those decisions are that dock identification, unless preceded by a properly conducted identification parade or supported by other independent evidence, is generally unsafe because an accused person seated in the dock naturally attracts the attention of the witness and may thereby influence identification.
46. The record herein shows that identification parades were conducted before commencement of the hearing. PW5 Inspector Eric Kipkemboi Maiyo testified that PW1 and PW2 independently identified the Appellants during the parade exercise and the identification parade forms were produced before the trial court. The evidence therefore did not consist merely of dock identification since the witnesses had already identified the Appellants before trial during the identification parades. The dock identification during hearing merely reaffirmed the earlier identification.
47. The Appellants nonetheless challenged the legality and fairness of the identification parades and relied on R v Mwango s/o Manaa [1936] 3 EACA 29, Ssentale v Uganda [1968] EA 365, David Mwita Wanja & Others v Republic [2007] eKLR, Samuel Kilonzo Musau v Republic [2014] eKLR and Kinyanjui & 2 Others v Republic [1989] KLR 60.
48. The principles emerging from the foregoing authorities are that identification parades must be conducted with scrupulous fairness and in strict compliance with the applicable rules and Police Force Standing Orders. Among the safeguards emphasized in those decisions are that the suspect should not be exposed to witnesses before the parade, the parade members should resemble the suspect in general appearance and the process must eliminate any possibility of suggestion or unfair influence.
49. The Appellants argued that the complainants had already seen them before the parade and that the investigating officer already knew them prior to arrest. They further argued that the descriptions allegedly relied upon such as dreadlocks, missing tooth, wide face and sunken eyes may have caused the Appellants to stand out from the other parade members if similar features were not replicated among the participants. That concern is legitimate because fairness requires parade members to resemble the suspect in general appearance.
50. I have carefully considered those complaints. PW6 admitted that there was a clerical error in one of the identification parade forms and further acknowledged that investigations had identified the Appellants as suspects prior to their arrest. However, suspicion by investigators or prior investigative focus upon suspects does not, of itself, invalidate an identification parade. The critical question remains whether the parade was conducted fairly and whether the identifying witnesses were improperly influenced, coached or directed towards the suspects before or during the exercise.
51. In the present case, there is no direct evidence demonstrating that PW1 or PW2 were coached, prompted or improperly influenced before the identification parade. PW5 testified that the witnesses independently identified each Appellant during the parade exercise and the parade forms were produced before the trial court. Further, the Appellants did not demonstrate that they raised any objection at the time regarding the composition of the parade members, the conduct of the exercise or any alleged unfairness in the procedure adopted.
52. I have nonetheless approached the parade evidence with the caution required in cases resting substantially on visual identification of strangers. Even so, I find that the identification parade evidence was not the sole basis upon which the conviction rested. Rather, the parade evidence served to reinforce and corroborate the visual identification made by PW1 and PW2 at the scene of the robbery itself.
53. The robbery occurred inside a club which both PW1 and PW2 consistently described as being illuminated by electricity lighting. The assailants remained inside the premises for approximately ten to fifteen minutes and directly interacted with the witnesses throughout the robbery. PW1 and PW2 each assigned specific and distinct roles to every Appellant during the commission of the offence and their respective accounts materially corroborated each other on those particulars.
54. I have further considered the Appellants’ reliance on Njihia v Republic [1986] KLR 422 where the court warned that a defective identification parade may contaminate subsequent dock identification. However, unlike the circumstances contemplated in that authority, the evidence herein did not rest on dock identification alone. The identifying witnesses had ample opportunity to observe the assailants at close range under favourable lighting conditions and consistently described both their physical features and individual conduct during the robbery even before the commencement of trial.
55. Having carefully weighed the totality of the evidence and the authorities cited by the parties, I am satisfied that although caution was necessary because the case turned on identification of strangers at night, the prevailing circumstances substantially minimized the possibility of mistaken identity. I therefore find that the identification evidence against each Appellant was reliable, free from the possibility of material error and safely capable of sustaining the conviction entered by the trial court.
56. The third issue for determination is whether the contradictions, omissions and alleged inconsistencies in the prosecution case rendered the conviction unsafe.
57. The Appellants submitted that the prosecution evidence was riddled with contradictions particularly regarding the circumstances and places of arrest of the Appellants. They argued that PW6, the investigating officer, initially testified that the Appellants were arrested together at Nyabite pool area as a group, thereby creating the impression that they were acting jointly. However, according to the Appellants, the Occurrence Book entries subsequently produced before the court showed that the Appellants were in fact arrested separately at different places and at different times.
58. The Appellants argued that the contradiction was material because it directly affected the credibility of the prosecution case regarding alleged common intention and association among the Appellants.
59. In support of that submission, the Appellants relied on Ndungu Kimanyi v Republic [1979] KLR 283 where the Court of Appeal held that a witness in a criminal case upon whose evidence it is proposed to rely should not create an impression that he is not a straightforward person or raise suspicion about his trustworthiness because that would render his evidence unsafe.
60. The Appellants further relied on Richard Munene v Republic [2018] eKLR where the Court of Appeal held that not every minor inconsistency or contradiction is f
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2. The record further shows that the Appellants were arraigned before the trial court on 11th December 2023 where the substance of the charge and every element thereof was read over and explained to them in a language they understood. They each pleaded not guilty and the matter proceeded to full trial.
3. During the hearing, the prosecution called six witnesses in support of its case. PW1, Faustina Moraa, testified that on the night of 30th November 2023 at about 8:45 p.m., she was inside her club at Nyamira Township in the company of PW2, John Joseph Kiage, when three men entered the premises pretending to be customers seeking to buy alcohol. She testified that the premises had electricity lighting which enabled her to clearly observe the persons who entered.
4. The witness stated that the 2nd Appellant approached her and requested to be served alcohol. She testified that shortly thereafter he assaulted her by striking her on the cheek causing her to fall down. She described him as well-built and having dreadlocks. She further testified that the 3rd Appellant wielded a pistol and ordered PW2 to sit down while guarding him throughout the robbery. She described the 3rd Appellant as having sunken eyes. PW1 further testified that the 1st Appellant carried a bag and moved around the premises collecting phones, money, keys, alcoholic drinks and a radio. She described him as having a missing tooth and a wide face.
5. The witness additionally testified that the robbery lasted for approximately ten to fifteen minutes and that she was therefore able to observe the attackers closely throughout the incident. She further testified that she later attended an identification parade where she positively identified the Appellants based on the physical features she had observed during the robbery.
6. PW2, John Joseph Kiage, testified that the 2nd Appellant is the person who first approached PW1 pretending to be a customer before assaulting her. He further testified that the 3rd Appellant pointed a pistol at him and ordered him to sit down while the robbery continued. PW2 also confirmed that the 1st Appellant actively participated in collecting the stolen items from the premises. PW2 similarly testified that the premises were well lit with electricity lighting and that the assailants remained inside the club for between ten to fifteen minutes.
7. He stated that he therefore had sufficient opportunity to observe each of them. He further testified that he subsequently attended an identification parade and positively identified the Appellants.
8. PW3, Dr. Kennedy Masara of Nyamira Referral Hospital, testified and produced P3 forms, treatment notes and medical examination reports relating to PW1 and PW4 Mariga Ong’ang’a. He confirmed that PW1 sustained swelling on the face and a cut wound on the parietal region caused by a blunt object while PW4 sustained injuries on the occipital region of the head. The medical summary, treatment notes and medical examination reports formed part of the prosecution exhibits.
9. PW4, Mariga Ong’ang’a testified that he was the security guard stationed at the premises on the material night. He stated that he was attacked by the robbers outside the club and struck on the head before losing consciousness. It was his evidence that one of the attackers carried a pistol.
10. PW5, Inspector Eric Kipkemboi Maiyo, conducted identification parades involving the Appellants on 05th December 2023. He produced the identification parade forms and testified that PW1 and PW2 independently identified the Appellants based on their physical appearance and distinctive features including dreadlocks, a missing tooth and sunken eyes.
11. PW6, Police Constable Eva Moraa, the investigating officer, visited the scene after the robbery, recorded witness statements and conducted investigations which led to the arrest of the Appellants.
12. At the close of the prosecution case, the learned trial magistrate delivered a ruling dated 22nd April 2025 finding that the prosecution had established a prima facie case against the Appellants and accordingly placed them on their defence.
13. In their defence, the Appellants each gave sworn testimony denying involvement in the offence and raising alibi defences.
14. The 1st Appellant testified that on 30th November 2023 he was at home in Egesieri Bomanyanga Sub-location where he spent the day making charcoal from about 7:00 a.m. until 6:00 p.m. He stated that after bathing and taking supper, he went to sleep at about 9:00 p.m. He testified that on 03rd December 2023 village elders went to his home and escorted him to Nyamira Police Station where he was arrested and later subjected to an identification parade. He denied participating in the robbery and denied possession of any firearm. He further testified that the investigating officer participated in the identification parade and directed the complainants during the exercise.
15. In support of the 1st Appellant’s defence, DW1 Gladys Bosibori Ouru, his mother, testified that the 1st Appellant spent the material day at home making charcoal and did not leave the homestead. She stated that he had no firearm and that village elders later arrested him from home before handing him over to the police.
16. The 2nd Appellant, testified that on 30th November 2023 he was at his home in Rang’enyo where he spent the night with his wife and child after attending to his vegetable farm during the day. He testified that on 02nd December 2023 he was arrested at a pool table in Nyabite by police officers in civilian clothes and later taken to Nyamira Police Station. He denied knowing the complainants or the co-accused persons prior to the case and denied participating in the robbery. He further alleged that during the identification parade the complainants had already seen him and that one of the officers directed the complainants towards him before he was identified.
17. The 3rd Appellant, testified that on 30th November 2023 he was in Sondu and on the following day travelled to Kemasare after receiving information that his father was unwell and required hospital treatment. He stated that on 02nd December 2023 he was arrested at his parents’ home by police officers who were accompanied by members of the public. He denied involvement in the robbery and testified that nothing connected to the offence was recovered from him. He further challenged the manner in which the identification parade was conducted and maintained that he did not know the co-accused persons before the arrest.
18. In support of the 3rd Appellant’s defence, DW2 Thomas Nyamuni Gesemba, his father, testified that the 3rd Appellant arrived home on 01st December 2023 after travelling from Sondu because he had been informed that his father was unwell. He stated that the police later arrested the 3rd Appellant from home and searched the compound but did not recover any of the stolen items allegedly connected to the robbery.
19. Upon considering the evidence before it, the trial court delivered judgment dated 08th September 2025, found that the prosecution had proved the offence of robbery contrary to section 296(2) of the Penal Code beyond reasonable doubt, convicted the Appellants and sentenced each of them to suffer death.
20. Aggrieved by both conviction and sentence, the Appellants filed the present appeal through the Memorandum of Appeal dated 16th September 2025 raising the following grounds of appeal:
i. That the learned trial magistrate erred in law and fact in denying the Appellants bond pending trial contrary to Article 49(1)(h) of the Constitution.
ii. That the learned trial magistrate erred in law and fact by failing to set the accused persons at liberty pending trial despite the constitutional right to bail and the absence of compelling reasons.
iii. That the learned trial magistrate erred in relying on a shallow probation report which disclosed no lawful basis for denial of bond.
iv. That the complainant had only opposed bond in respect of one accused person yet the court denied bond to all the accused persons.
v. That the learned trial magistrate erred in denying bond despite the probation report not finding the accused persons to be flight risks or persons with previous convictions.
vi. That the learned trial magistrate generally erred in law and fact in denying the Appellants bond.
vii. That the learned trial magistrate erred in convicting the Appellants on identification evidence where the accused persons had not been described prior to the identification parade, thereby rendering the identification mere dock identification.
viii. That the learned trial magistrate erred in convicting the Appellants despite there being no evidence that separate identification parades were conducted for each Appellant.
ix. That the learned trial magistrate erred in finding that the accused persons acted together despite there being no evidence that they knew each other before or during the robbery.
x. That the learned trial magistrate erred in imposing the death sentence despite the alleged identification evidence being irregular and unreliable.
xi. That the learned trial magistrate erred in failing to appreciate the impropriety of the identification parade, particularly because the investigating officer already knew some of the accused persons prior to the parade.
xii. That the learned trial magistrate erred in failing to consider contradictions in the prosecution case, particularly regarding the circumstances and places of arrest of the accused persons.
xiii. That the learned trial magistrate erred in imposing the death sentence without calling crucial witnesses including the Chief and arresting officers to testify.
xiv. That the learned trial magistrate erred in convicting the Appellants despite no stolen items, weapons or forensic evidence being recovered from them.
xv. That the learned trial magistrate erred in sentencing the Appellants to death despite the evidence allegedly showing that they were separately arrested and were not known to each other.
xvi. That the learned trial magistrate erred in failing to consider a lesser sentence and the possibility of non-complicit or incidental involvement by the Appellants.
xvii. That the learned trial magistrate failed to appreciate the risk of wrongful conviction given the admissions made by the investigating officer and other witnesses regarding the identification parade and prior knowledge of the suspects.
xviii. That the learned trial magistrate erred by shifting the burden of proof to the Appellants instead of placing it upon the prosecution.
xix. That the learned trial magistrate erred in denying the Appellants bond and/or cash bail.
xx. That the learned trial magistrate generally erred in law and fact in convicting the Appellants.
xxi. That the learned trial magistrate generally erred in law and fact in sentencing the Appellants to death.
21. Having carefully reconsidered the entire record of appeal, the proceedings before the trial court, the judgment appealed against, the Memorandum of Appeal dated 16th September 2025, the Appellants’ amended written submissions dated 16th March 2026 and the victims’ written submissions dated 27th April 2026, together with all the authorities cited by the parties, the following issues arise for determination:
1) Whether the prosecution proved all the ingredients of the offence of robbery contrary to section 296(2) of the Penal Code beyond reasonable doubt.
2) Whether the Appellants were positively identified as the persons who committed the offence.
3) Whether the contradictions, omissions and alleged inconsistencies in the prosecution case rendered the conviction unsafe.
4) Whether the prosecution failed to call necessary witnesses
5) Whether the prosecution established common intention and joint participation on the part of the Appellants.
6) Whether the alibi defences raised by the Appellants displaced the prosecution case or raised reasonable doubt.
7) Whether the burden of proof was improperly shifted to the Appellants.
8) Whether the sentence imposed upon the Appellants was lawful, justified and proportionate in the circumstances.
9) Whether the denial of bond pending trial violated the Appellants’ constitutional rights and if so whether the issue remains justiciable after conviction and sentence.
22. Before addressing the foregoing issues, it is necessary to restate the duty of this court as a first appellate court. The victims relied on the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 where the former East African Court of Appeal held that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The same principle was reiterated in Okeno v Republic [1972] EA 32 where the court emphasized that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and arrive at its own independent conclusions.
23. Guided by the foregoing principles, this court has carefully re-evaluated the entire evidence tendered before the trial court, the exhibits produced, the rival submissions filed by the parties and all the authorities cited.
24. The first issue for determination is whether the prosecution proved all the ingredients of the offence of robbery contrary to section 296(2) of the Penal Code beyond reasonable doubt.
25. The Appellants submitted that the prosecution failed to discharge the burden of proof and that the learned trial magistrate improperly shifted the burden onto them. In support of that submission, the Appellants relied on the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462 where the House of Lords held that throughout the web of English criminal law one golden thread is always to be seen, namely that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt and that burden never shifts save in a few statutory exceptions.
26. The Appellants further relied on Sawe v Republic [2003] KLR 364 where the Court of Appeal held that suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
27. I respectfully adopt the principles enunciated in the foregoing authorities and reiterate that, as already stated hereinabove, the legal burden of proof in criminal proceedings rests at all times upon the prosecution and does not shift to an accused person. The prosecution is therefore required to establish the charge against the Appellants beyond reasonable doubt.
28. Section 296(2) of the Penal Code provides that the offence under this section is established where any one of the following ingredients is proved: where the offender is armed with a dangerous or offensive weapon; where the offender is in company with one or more persons; or where at or immediately before or after the robbery the offender wounds, beats or uses personal violence upon the victim.
29. The evidence of PW1, PW2 and PW4 consistently established that the attackers were three in number. PW1 and PW2 testified that one of the assailants carried a pistol while another wielded a hammer. PW1 further testified that she was struck on the cheek and fell down during the robbery. PW4 similarly testified that he was attacked and struck on the head before losing consciousness.
30. The medical evidence adduced through PW3, Dr. Kennedy Masara, corroborated the evidence of violence. The P3 forms and treatment notes confirmed that PW1 sustained swelling on the face and a cut wound on the parietal region caused by a blunt object while PW4 sustained injuries to the head.
31. I therefore find that the prosecution proved beyond reasonable doubt that the robbery was committed by more than one person, that dangerous weapons namely a pistol and hammer were used and that actual violence was inflicted upon PW1 and PW4 during the robbery. Consequently, all the essential ingredients of robbery contrary to section 296(2) of the Penal Code were established.
32. The second issue for determination is whether the Appellants were positively identified as the persons who committed the offence and, in that regard, whether the visual identification evidence was free from the possibility of error, whether the identification parades were properly conducted in accordance with the law and whether the conviction improperly rested on dock identification.
33. The Appellants submitted that the conviction was unsafe because the case turned entirely on visual identification of strangers at night. They argued that none of the witnesses knew them before the incident and that the descriptions allegedly given by the witnesses were ordinary physical features shared by many people. They further argued that the identifying witnesses only described the Appellants after they had already seen them in the dock during trial.
34. The Appellants relied heavily on Wamunga v Republic [1989] KLR 424 where the Court of Appeal warned that evidence of visual identification in criminal cases can bring about miscarriage of justice and that such evidence must therefore be examined with the greatest care particularly where conditions favouring identification are difficult. The Appellants also relied on Roria v Republic [1967] EA 583 where the Court observed that a conviction resting entirely on identity invariably causes a degree of uneasiness and that the danger becomes greater where the only evidence against an accused person is identification by a single witness.
35. The Appellants further relied on R v Turnbull [1977] QB 224 where the English Court of Appeal laid down guidelines requiring courts to examine carefully the circumstances under which identification was made including the lighting, duration of observation, distance, prior acquaintance and possibility of mistake.
36. I am duly guided by the principles enunciated in the foregoing authorities which underscore the need for courts to exercise the greatest caution when dealing with evidence of visual identification, particularly where the case turns on identification of strangers. This court must therefore carefully examine the prevailing circumstances under which the identification was made and satisfy itself that the evidence was free from the possibility of error or mistaken identity.
37. I have carefully reconsidered the evidence of PW1 and PW2. It is common ground that neither PW1 nor PW2 knew any of the Appellants before the robbery. The case therefore turned entirely on visual identification of strangers.
38. PW1 testified that the robbery occurred at about 8:45 p.m. inside her club at Nyamira Township. According to her testimony, the premises had electricity lighting and the assailants remained inside the club for approximately ten to fifteen minutes. She testified that the 2nd Appellant first approached her pretending to be a customer and directly engaged her in conversation while asking to be served alcohol. She stated that she therefore observed him closely before he assaulted her.
39. PW1 further testified that the 3rd Appellant wielded a pistol and guarded PW2 throughout the robbery while the 1stAppellant carried a bag and moved around collecting money, phones, keys and alcoholic drinks. She described the 1st Appellant as having a missing tooth and a wide face, the 2nd Appellant as well-built and having dreadlocks and the 3rd Appellant as having sunken eyes.
40. PW2 corroborated PW1’s evidence in material particulars. He similarly testified that the robbery occurred inside a well-lit club and that the assailants remained there for approximately ten to fifteen minutes. He confirmed that the 2nd Appellant assaulted PW1 while the 3rd Appellant pointed a pistol at him and ordered him to sit down. He also confirmed that the 1st Appellant participated in collecting the stolen property.
41. I have nonetheless carefully considered the Appellants’ submission that the physical descriptions allegedly given by PW1 and PW2 were not sufficiently distinctive since features such as dreadlocks, missing teeth, wide faces and sunken eyes may be shared by many persons within the general population. That argument is not without substance and must be approached with caution, particularly because the case herein turned on visual identification of persons previously unknown to the witnesses. Courts must indeed guard against the danger of convicting accused persons on the basis of vague, broad or generalized descriptions capable of applying to numerous individuals.
42. However, upon a careful re-evaluation of the evidence on record, I am satisfied that the prosecution case did not rest solely upon generalized physical descriptions. PW1 and PW2 each gave detailed and mutually corroborative accounts of the specific role allegedly played by each Appellant during the robbery. PW1 identified the 2nd Appellant as the person who approached her pretending to be a customer before assaulting her, the 3rd Appellant as the person who wielded the pistol and guarded PW2 and the 1st Appellant as the person who carried a bag and collected the stolen items. PW2 substantially corroborated that account and similarly assigned distinct roles to each Appellant.
43. In my view, the consistency in the witnesses’ narration regarding the conduct and role played by each Appellant during the robbery considerably strengthens the reliability of the identification evidence. The witnesses were not merely describing random physical appearances in the abstract; rather, they associated those appearances with specific acts observed during the commission of the offence over a period of approximately ten to fifteen minutes in a lit environment.
44. The Appellants further submitted that the identifying witnesses only described them during the hearing after seeing them in court and that the evidence therefore amounted to dock identification. In support of that argument, they relied on Njoroge v Republic [1987] KLR 19, Ajode v Republic [2004] 2 KLR 81, Gabriel Kamau Njoroge v Republic (1982–88) 1 KAR 1134 and Amolo v Republic [1991] 2 KAR 254.
45. I have carefully considered the foregoing authorities together with the evidence on record. The principles emerging from those decisions are that dock identification, unless preceded by a properly conducted identification parade or supported by other independent evidence, is generally unsafe because an accused person seated in the dock naturally attracts the attention of the witness and may thereby influence identification.
46. The record herein shows that identification parades were conducted before commencement of the hearing. PW5 Inspector Eric Kipkemboi Maiyo testified that PW1 and PW2 independently identified the Appellants during the parade exercise and the identification parade forms were produced before the trial court. The evidence therefore did not consist merely of dock identification since the witnesses had already identified the Appellants before trial during the identification parades. The dock identification during hearing merely reaffirmed the earlier identification.
47. The Appellants nonetheless challenged the legality and fairness of the identification parades and relied on R v Mwango s/o Manaa [1936] 3 EACA 29, Ssentale v Uganda [1968] EA 365, David Mwita Wanja & Others v Republic [2007] eKLR, Samuel Kilonzo Musau v Republic [2014] eKLR and Kinyanjui & 2 Others v Republic [1989] KLR 60.
48. The principles emerging from the foregoing authorities are that identification parades must be conducted with scrupulous fairness and in strict compliance with the applicable rules and Police Force Standing Orders. Among the safeguards emphasized in those decisions are that the suspect should not be exposed to witnesses before the parade, the parade members should resemble the suspect in general appearance and the process must eliminate any possibility of suggestion or unfair influence.
49. The Appellants argued that the complainants had already seen them before the parade and that the investigating officer already knew them prior to arrest. They further argued that the descriptions allegedly relied upon such as dreadlocks, missing tooth, wide face and sunken eyes may have caused the Appellants to stand out from the other parade members if similar features were not replicated among the participants. That concern is legitimate because fairness requires parade members to resemble the suspect in general appearance.
50. I have carefully considered those complaints. PW6 admitted that there was a clerical error in one of the identification parade forms and further acknowledged that investigations had identified the Appellants as suspects prior to their arrest. However, suspicion by investigators or prior investigative focus upon suspects does not, of itself, invalidate an identification parade. The critical question remains whether the parade was conducted fairly and whether the identifying witnesses were improperly influenced, coached or directed towards the suspects before or during the exercise.
51. In the present case, there is no direct evidence demonstrating that PW1 or PW2 were coached, prompted or improperly influenced before the identification parade. PW5 testified that the witnesses independently identified each Appellant during the parade exercise and the parade forms were produced before the trial court. Further, the Appellants did not demonstrate that they raised any objection at the time regarding the composition of the parade members, the conduct of the exercise or any alleged unfairness in the procedure adopted.
52. I have nonetheless approached the parade evidence with the caution required in cases resting substantially on visual identification of strangers. Even so, I find that the identification parade evidence was not the sole basis upon which the conviction rested. Rather, the parade evidence served to reinforce and corroborate the visual identification made by PW1 and PW2 at the scene of the robbery itself.
53. The robbery occurred inside a club which both PW1 and PW2 consistently described as being illuminated by electricity lighting. The assailants remained inside the premises for approximately ten to fifteen minutes and directly interacted with the witnesses throughout the robbery. PW1 and PW2 each assigned specific and distinct roles to every Appellant during the commission of the offence and their respective accounts materially corroborated each other on those particulars.
54. I have further considered the Appellants’ reliance on Njihia v Republic [1986] KLR 422 where the court warned that a defective identification parade may contaminate subsequent dock identification. However, unlike the circumstances contemplated in that authority, the evidence herein did not rest on dock identification alone. The identifying witnesses had ample opportunity to observe the assailants at close range under favourable lighting conditions and consistently described both their physical features and individual conduct during the robbery even before the commencement of trial.
55. Having carefully weighed the totality of the evidence and the authorities cited by the parties, I am satisfied that although caution was necessary because the case turned on identification of strangers at night, the prevailing circumstances substantially minimized the possibility of mistaken identity. I therefore find that the identification evidence against each Appellant was reliable, free from the possibility of material error and safely capable of sustaining the conviction entered by the trial court.
56. The third issue for determination is whether the contradictions, omissions and alleged inconsistencies in the prosecution case rendered the conviction unsafe.
57. The Appellants submitted that the prosecution evidence was riddled with contradictions particularly regarding the circumstances and places of arrest of the Appellants. They argued that PW6, the investigating officer, initially testified that the Appellants were arrested together at Nyabite pool area as a group, thereby creating the impression that they were acting jointly. However, according to the Appellants, the Occurrence Book entries subsequently produced before the court showed that the Appellants were in fact arrested separately at different places and at different times.
58. The Appellants argued that the contradiction was material because it directly affected the credibility of the prosecution case regarding alleged common intention and association among the Appellants.
59. In support of that submission, the Appellants relied on Ndungu Kimanyi v Republic [1979] KLR 283 where the Court of Appeal held that a witness in a criminal case upon whose evidence it is proposed to rely should not create an impression that he is not a straightforward person or raise suspicion about his trustworthiness because that would render his evidence unsafe.
60. The Appellants further relied on Richard Munene v Republic [2018] eKLR where the Court of Appeal held that not every minor inconsistency or contradiction is f
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