(An Appeal from the decision by Hon. J.M Kituku in Senior Principal Magistrate in Kilifi Criminal case No. E070 of 2020 dated 10 th July, 2023)
1. The appellant was charged with other two persons with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. It was alleged that on 30 th September, 2020 at around 2000hrs in Mada-Mane Sub-location, Vetengani Location in Ganze Sub County within Kilifi County while armed with a dangerous weapon namely panga robbed Ushindi Zablon Kahindi of his phone, cash and other items all valued at Kshs. 33,100/=and immediately before the said robbery wounded the said Ushindi Zablon Mumba. The appellant was found guilty of the offence and accordingly convicted and sentenced to serve an imprisonment term of 25 years. The two others were acquitted.
2. The appellant aggrieved by the conviction and sentence of the trial court lodged an appeal to the High Court. The appellant raised several grounds which are contained in the petition of appeal and amended grounds of appeal accompanying his submission. Those grounds can be compressed to five grounds: Firstly, his rights under Article 49(1)(f)(i)(ii) of the Constitution were violated. Secondly, the offence of robbery with violence was not proved beyond reasonable doubt as required. Thirdly, the trial court erred in law and fact by failing to consider that that the evidence in support of identification was insufficient to sustain a conviction in the circumstances. Fourthly, the trial court erred in law and fact when sentencing by failing to take into account the days he was in pre-trial custody contrary to Section 333(1) of the Criminal Procedure Code, and lastly, the trial court erred in law and fact by failing to consider his mitigations.
3. In short the appellant contends that the prosecution failed to discharge the legal and evidential, and as such the conviction and sentence should be set aside.
4. The appeal was heard by way of written submissions. The appellant relied on his undated. He argued that his right under Article 49(1)(f)(i)(ii) of the Constitution was violated as he was held in custody beyond 24 hours before being arraigned in court. He urged the court to exercise its jurisdiction under Article 165(3)(b) of the Constitution and declare that his right to freedom and arbitrary arrest as stipulated under Article 29(a) of the Constitution was violated. His right to dignity was infringed. He urged the court to grant appropriate remedy.
5. The appellant further argued that the evidence in support of identification tendered by the prosecution was insufficient to sustain the conviction. The appellant submitted that the circumstances were not conducive for the complainant to identify him as the attacker.
6. The appellant pointed out that the attack happened at night. The complainant was under distress because of the manner in which the attack happened. That the intensity of the light was not described much as the complainant testified that there was moonlight and he had D-light torch. He pointed out that though the complainant claimed to have identified the appellant as the attacker, he contradicted PW4 from whom he sought refuge who said the complainant did not mention to him the name of the attackers. The appellant relied on several authorities on identification among them the cases of Chillumo Chome vs R Cr. App. No. 144 of 2006 and Abdalla Bin Wendo vs R 20 E.A.C.A 166. He urged the court to find that identification was not proved beyond reasonable doubt.
7. The appellant further argued that the ingredients of the offence of robbery with violence as provided for under Section 295 of the Penal Code that the attacker must be armed with dangerous or offensive weapon and beats, wounds, strikes or uses any form of personal violence against the victim were not proved beyond reasonable doubt. The appellant argued that no weapon was recovered from him. He faulted the trial court for finding that he the complainant was injured when the PW3 Form and treatment notes were not produced in court to show the extent of the injuries.
8. The appellant cited Section 333(2) of the Criminal Procedure Code and faulted the trial court for not taking into account the period he was in custody when meting the sentence. He relied of the cases of R vs Vincent Jona & 87 others Petition No. 15 of 2020 and Ahamad Abolifathi Mohamed & Another vs R Cr. App. No. 135 of 2016. He urged the court to consider the time spent in custody in the sentence meted by the trial court.
9. Finally, the appellant argued that the trial court failed to consider his mitigation and meted a severe sentence violating his right to fair trial under Article 50(2) of the Constitution. He submitted that he was remorseful and a first offender. He relied on the Sentencing Policy Guidelines and urged the court to consider a less severe sentence.
10. The respondent in submissions dated 26 th September, 2025 contented that the prosecution established all essential ingredients of the offence of robbery with violence relying on the case of Shadrack Karanja vs R Cr. Appeal No. 119 of 2005 (2006) e KLR. It is argued that it was demonstrated that the complainant was attacked with a blunt object. He sustained injuries and he was robbed of his items. It was submitted that the attackers were armed with dangerous weapon and used violence.
11. The respondent submitted that the identification was safe to sustain a conviction as there were no discrepancies a fact which the trial court sufficiently dealt with in its judgment.
12. The other aspect of the respondent’s submissions is on the defect in charge sheet which the appellant raised in his initial petition of appeal but appeared to have abandoned it. I need not dwell on this aspect save to state that the charge sheet was not defective.
13. This is the first appeal to the High Court. As expected I have examined the record of the trial court, re-evaluated and considered the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the advantage of hearing or seeing the witnesses testify in court. This is as laid down in numerous decisions of the Court of Appeal and this Court among them the case of Kiilu & Another vs Republic (2005) 1 KLR 174 the Court of Appeal stated as follows:
1. An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.
14. Further to the foregoing, it must be remembered that the legal burden of proof in criminal cases remains with the prosecution throughout to prove the guilty of an accused person beyond reasonable doubt. Such burden does not shift to the accused save in a few exceptional circumstances expressly provide by the law. This position has been restated in numerous authorities and need not be overemphasized. For instance, in the case of Stephen Ngui Mulili vs Republic (2014) e KLR the court emphasized the prosecution duty in criminal cases and stated:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
15. The appellant was charged with the offence of robbery with violence. Section 295 of the Penal Code defines robbery as follows:
“Any person who steals anything, and at, or immediately before or immediately after the time of the 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 a felony termed robbery.”
16. Section 296(2) of the Penal Code provide:
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company with one or more other person or persons, or if immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses other personal violence to any person, shall be sentenced to death.”
17. From the foregoing, the offence of robbery with violence contrary to Section 296(2) of the Penal Code to be committed, any one of these circumstances must exist; firstly, the offender must be armed with a dangerous or offensive weapon or instrument; secondly, the offender is in the company of one or more other persons; and finally, the offender uses violence.
18. Thus, for the offence of robbery with violence to be proved, the prosecution must prove stealing under Section 295 coupled with one or all the circumstances set out in Section 296(2). These elements must be proved disjunctively. (See Johana Ndung’u vs Republic Cr. Appeal No. 116 of 1995).
19. In the instant case the appellant testified that he was heading home when he was attacked. He was hit with a blunt object and fell on the ground. The assailant continued hitting him while on the ground. He was injured. The attacker stole from him cash and other items. He said it is the appellant who attacked him. The trial court found that the circumstance disclosed the offence of robbery with violence.
20. Having evaluated and considered the evidence adduced by the complainant, it discloses that he was attacked. The attackers hit him with a blunt object and stole from him. I agree with the trial court that the circumstances disclosed the offence of robbery with violence.
21. The critical issue for consideration in this appeal is whether there was sufficient evidence linking the appellant with the offence. This brings forth the issue of whether the appellant was identified as the assailant. Identification in cases of robbery with violence is critical.
22. The complainant testified that he was able to identify the appellant as the one who attacked him as he is known to him and that at the material time he lost consciousness. None of the other witnesses who testified alluded to have identified the appellant as the assailant as all their evidence was hearsay. What they were told by the appellant.
23. From the foregoing, it is clear that the evidence of identification/recognition was that of the complainant alone. This was identification at night as the offence occurred at 8.00pm. As such the evidence of the complainant is that of a single witness. As appreciated by the trial court, it is trite that such evidence must be treated with caution. In the case of Abdalla Bin Wendo & Another vs Republic (1953) 20 E.A.C.A 166 the Eastern African Court of Appeal held:
“Subject to certain known exception it is trite law that a fact may be proved by testimony of single witness but the rule does not lessen the need for testing the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult.”
24. From the foregoing, when the court is relying on a single identifying witness, and particularly when the offence was committed at night as the case here, it must enquire on the nature of light available, size, and position relative to suspect; the length of time witness had to see the attacker and distance from the assailant; whether it was recognition of someone known; whether the witness gave the description of the assailant at the earliest opportunity. The court must warn itself on possibility of error before convicting.
25. The trial court after warning itself proceeded and found that the appellant was properly identified as he was known to the complainant. That prior to the attack the complainant had met the appellant and that there was light hence the appellant was identified with no possibility of error or mistaken identity.
26. Upon evaluating the evidence adduced by the prosecution, it is clear that after the attack, the complainant sought refuge at Vitengeni Primary School and met PW4. If in deed he had identified or recognized the appellant as the assailant he would have mentioned him to PW4 or even given description to him. PW4 on his part said all the complainant told him is that he was attacked by criminals whom he did not know.
27. The complainant in his evidence which is corroborated by PW2 who went to the scene is that he lost consciousness and he only gave the names of the attackers later who he said he identified. The complainant though he said there was moonlight and he had D-light torch, he did not describe the intensity of light at the time of attack. It is also evident that at the time of the attack, the complainant was distressed and he was attacked from behind. All these prevailing circumstances were not conducive for positive identification of the assailant.
28. The trial court in his judgment did not dwell on prevailing circumstances at the time in finding that the identification was safe and free from error or mistake. As observed in the case of Abdalla Bin Wendo (supra) a witness may be honest yet mistaken, and may make erroneous assumptions particularly if he believes that what he thinks is likely to be true must be true.
29. In the circumstances of this case, I am not persuaded that the identification of the appellant as the assailant was safe and free from error as the trial court found. The trial court fell in error in failing to consider the prevailing circumstances in finding that the appellant was positively identified. The inconsistency of the evidence of the complainant that he identified the appellant vis-à-vis the evidence of PW4 whom the complainant met first that he did not mention the name or description of the appellant as the attacker cerates doubt in the prosecution evidence on identification. The conviction was not safe in the circumstances and the same cannot stand.
30. On failure by the trial court to take into account the period the appellant was in custody in imposing the sentence pursuant to Section 333(2) of the Criminal Code, it is clear that the trial court fell in error. The trial court ought to have accounted for the same. The trial court therefore fell in error.
31. On the aspect of mitigations, I find that the sentencing court considered the same in imposing the sentence. In any case sentence is within the discretion of the trial court and the appellate court can only interfere if the same is manifestly excessive or extremely lenient.
32. The appellant alluded to violation of his constitutional rights by being held beyond the stipulated constitutional period contrary to Article 49(1)(f)(i)(ii) of the Constitution and prayed for this court to exercise its constitutional jurisdiction and grant a remedy, the position is that the appellant can pursue remedy vide separate proceedings.
33. The upshot of the foregoing I find that the appeal has merit and the same is allowed. The finding of the trial court both on conviction and sentence is hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 16 th day of July, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for the respondent appearing virtually
Ms. Otwo Court Assistant.
2
1. The appellant was charged with other two persons with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. It was alleged that on 30 th September, 2020 at around 2000hrs in Mada-Mane Sub-location, Vetengani Location in Ganze Sub County within Kilifi County while armed with a dangerous weapon namely panga robbed Ushindi Zablon Kahindi of his phone, cash and other items all valued at Kshs. 33,100/=and immediately before the said robbery wounded the said Ushindi Zablon Mumba. The appellant was found guilty of the offence and accordingly convicted and sentenced to serve an imprisonment term of 25 years. The two others were acquitted.
2. The appellant aggrieved by the conviction and sentence of the trial court lodged an appeal to the High Court. The appellant raised several grounds which are contained in the petition of appeal and amended grounds of appeal accompanying his submission. Those grounds can be compressed to five grounds: Firstly, his rights under Article 49(1)(f)(i)(ii) of the Constitution were violated. Secondly, the offence of robbery with violence was not proved beyond reasonable doubt as required. Thirdly, the trial court erred in law and fact by failing to consider that that the evidence in support of identification was insufficient to sustain a conviction in the circumstances. Fourthly, the trial court erred in law and fact when sentencing by failing to take into account the days he was in pre-trial custody contrary to Section 333(1) of the Criminal Procedure Code, and lastly, the trial court erred in law and fact by failing to consider his mitigations.
3. In short the appellant contends that the prosecution failed to discharge the legal and evidential, and as such the conviction and sentence should be set aside.
4. The appeal was heard by way of written submissions. The appellant relied on his undated. He argued that his right under Article 49(1)(f)(i)(ii) of the Constitution was violated as he was held in custody beyond 24 hours before being arraigned in court. He urged the court to exercise its jurisdiction under Article 165(3)(b) of the Constitution and declare that his right to freedom and arbitrary arrest as stipulated under Article 29(a) of the Constitution was violated. His right to dignity was infringed. He urged the court to grant appropriate remedy.
5. The appellant further argued that the evidence in support of identification tendered by the prosecution was insufficient to sustain the conviction. The appellant submitted that the circumstances were not conducive for the complainant to identify him as the attacker.
6. The appellant pointed out that the attack happened at night. The complainant was under distress because of the manner in which the attack happened. That the intensity of the light was not described much as the complainant testified that there was moonlight and he had D-light torch. He pointed out that though the complainant claimed to have identified the appellant as the attacker, he contradicted PW4 from whom he sought refuge who said the complainant did not mention to him the name of the attackers. The appellant relied on several authorities on identification among them the cases of Chillumo Chome vs R Cr. App. No. 144 of 2006 and Abdalla Bin Wendo vs R 20 E.A.C.A 166. He urged the court to find that identification was not proved beyond reasonable doubt.
7. The appellant further argued that the ingredients of the offence of robbery with violence as provided for under Section 295 of the Penal Code that the attacker must be armed with dangerous or offensive weapon and beats, wounds, strikes or uses any form of personal violence against the victim were not proved beyond reasonable doubt. The appellant argued that no weapon was recovered from him. He faulted the trial court for finding that he the complainant was injured when the PW3 Form and treatment notes were not produced in court to show the extent of the injuries.
8. The appellant cited Section 333(2) of the Criminal Procedure Code and faulted the trial court for not taking into account the period he was in custody when meting the sentence. He relied of the cases of R vs Vincent Jona & 87 others Petition No. 15 of 2020 and Ahamad Abolifathi Mohamed & Another vs R Cr. App. No. 135 of 2016. He urged the court to consider the time spent in custody in the sentence meted by the trial court.
9. Finally, the appellant argued that the trial court failed to consider his mitigation and meted a severe sentence violating his right to fair trial under Article 50(2) of the Constitution. He submitted that he was remorseful and a first offender. He relied on the Sentencing Policy Guidelines and urged the court to consider a less severe sentence.
10. The respondent in submissions dated 26 th September, 2025 contented that the prosecution established all essential ingredients of the offence of robbery with violence relying on the case of Shadrack Karanja vs R Cr. Appeal No. 119 of 2005 (2006) e KLR. It is argued that it was demonstrated that the complainant was attacked with a blunt object. He sustained injuries and he was robbed of his items. It was submitted that the attackers were armed with dangerous weapon and used violence.
11. The respondent submitted that the identification was safe to sustain a conviction as there were no discrepancies a fact which the trial court sufficiently dealt with in its judgment.
12. The other aspect of the respondent’s submissions is on the defect in charge sheet which the appellant raised in his initial petition of appeal but appeared to have abandoned it. I need not dwell on this aspect save to state that the charge sheet was not defective.
13. This is the first appeal to the High Court. As expected I have examined the record of the trial court, re-evaluated and considered the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the advantage of hearing or seeing the witnesses testify in court. This is as laid down in numerous decisions of the Court of Appeal and this Court among them the case of Kiilu & Another vs Republic (2005) 1 KLR 174 the Court of Appeal stated as follows:
1. An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.
14. Further to the foregoing, it must be remembered that the legal burden of proof in criminal cases remains with the prosecution throughout to prove the guilty of an accused person beyond reasonable doubt. Such burden does not shift to the accused save in a few exceptional circumstances expressly provide by the law. This position has been restated in numerous authorities and need not be overemphasized. For instance, in the case of Stephen Ngui Mulili vs Republic (2014) e KLR the court emphasized the prosecution duty in criminal cases and stated:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
15. The appellant was charged with the offence of robbery with violence. Section 295 of the Penal Code defines robbery as follows:
“Any person who steals anything, and at, or immediately before or immediately after the time of the 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 a felony termed robbery.”
16. Section 296(2) of the Penal Code provide:
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company with one or more other person or persons, or if immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses other personal violence to any person, shall be sentenced to death.”
17. From the foregoing, the offence of robbery with violence contrary to Section 296(2) of the Penal Code to be committed, any one of these circumstances must exist; firstly, the offender must be armed with a dangerous or offensive weapon or instrument; secondly, the offender is in the company of one or more other persons; and finally, the offender uses violence.
18. Thus, for the offence of robbery with violence to be proved, the prosecution must prove stealing under Section 295 coupled with one or all the circumstances set out in Section 296(2). These elements must be proved disjunctively. (See Johana Ndung’u vs Republic Cr. Appeal No. 116 of 1995).
19. In the instant case the appellant testified that he was heading home when he was attacked. He was hit with a blunt object and fell on the ground. The assailant continued hitting him while on the ground. He was injured. The attacker stole from him cash and other items. He said it is the appellant who attacked him. The trial court found that the circumstance disclosed the offence of robbery with violence.
20. Having evaluated and considered the evidence adduced by the complainant, it discloses that he was attacked. The attackers hit him with a blunt object and stole from him. I agree with the trial court that the circumstances disclosed the offence of robbery with violence.
21. The critical issue for consideration in this appeal is whether there was sufficient evidence linking the appellant with the offence. This brings forth the issue of whether the appellant was identified as the assailant. Identification in cases of robbery with violence is critical.
22. The complainant testified that he was able to identify the appellant as the one who attacked him as he is known to him and that at the material time he lost consciousness. None of the other witnesses who testified alluded to have identified the appellant as the assailant as all their evidence was hearsay. What they were told by the appellant.
23. From the foregoing, it is clear that the evidence of identification/recognition was that of the complainant alone. This was identification at night as the offence occurred at 8.00pm. As such the evidence of the complainant is that of a single witness. As appreciated by the trial court, it is trite that such evidence must be treated with caution. In the case of Abdalla Bin Wendo & Another vs Republic (1953) 20 E.A.C.A 166 the Eastern African Court of Appeal held:
“Subject to certain known exception it is trite law that a fact may be proved by testimony of single witness but the rule does not lessen the need for testing the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult.”
24. From the foregoing, when the court is relying on a single identifying witness, and particularly when the offence was committed at night as the case here, it must enquire on the nature of light available, size, and position relative to suspect; the length of time witness had to see the attacker and distance from the assailant; whether it was recognition of someone known; whether the witness gave the description of the assailant at the earliest opportunity. The court must warn itself on possibility of error before convicting.
25. The trial court after warning itself proceeded and found that the appellant was properly identified as he was known to the complainant. That prior to the attack the complainant had met the appellant and that there was light hence the appellant was identified with no possibility of error or mistaken identity.
26. Upon evaluating the evidence adduced by the prosecution, it is clear that after the attack, the complainant sought refuge at Vitengeni Primary School and met PW4. If in deed he had identified or recognized the appellant as the assailant he would have mentioned him to PW4 or even given description to him. PW4 on his part said all the complainant told him is that he was attacked by criminals whom he did not know.
27. The complainant in his evidence which is corroborated by PW2 who went to the scene is that he lost consciousness and he only gave the names of the attackers later who he said he identified. The complainant though he said there was moonlight and he had D-light torch, he did not describe the intensity of light at the time of attack. It is also evident that at the time of the attack, the complainant was distressed and he was attacked from behind. All these prevailing circumstances were not conducive for positive identification of the assailant.
28. The trial court in his judgment did not dwell on prevailing circumstances at the time in finding that the identification was safe and free from error or mistake. As observed in the case of Abdalla Bin Wendo (supra) a witness may be honest yet mistaken, and may make erroneous assumptions particularly if he believes that what he thinks is likely to be true must be true.
29. In the circumstances of this case, I am not persuaded that the identification of the appellant as the assailant was safe and free from error as the trial court found. The trial court fell in error in failing to consider the prevailing circumstances in finding that the appellant was positively identified. The inconsistency of the evidence of the complainant that he identified the appellant vis-à-vis the evidence of PW4 whom the complainant met first that he did not mention the name or description of the appellant as the attacker cerates doubt in the prosecution evidence on identification. The conviction was not safe in the circumstances and the same cannot stand.
30. On failure by the trial court to take into account the period the appellant was in custody in imposing the sentence pursuant to Section 333(2) of the Criminal Code, it is clear that the trial court fell in error. The trial court ought to have accounted for the same. The trial court therefore fell in error.
31. On the aspect of mitigations, I find that the sentencing court considered the same in imposing the sentence. In any case sentence is within the discretion of the trial court and the appellate court can only interfere if the same is manifestly excessive or extremely lenient.
32. The appellant alluded to violation of his constitutional rights by being held beyond the stipulated constitutional period contrary to Article 49(1)(f)(i)(ii) of the Constitution and prayed for this court to exercise its constitutional jurisdiction and grant a remedy, the position is that the appellant can pursue remedy vide separate proceedings.
33. The upshot of the foregoing I find that the appeal has merit and the same is allowed. The finding of the trial court both on conviction and sentence is hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 16 th day of July, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for the respondent appearing virtually
Ms. Otwo Court Assistant.
2