(Appeal arises from the judgment of Hon. M. O. Wambani (CM) dated 24/7/2024 in Siaya Chief Magistrates Court Criminal Case N. 1194 of 2019)
1. The appeal arises from the judgment of Hon. M.O. Wambani (CM) in Siaya Chief Magistrates’ Court Criminal Case No. 1194 of 2019 wherein she convicted and sentenced the Appellants to life imprisonment for the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. Being aggrieved by the said conviction and sentence, the Appellants filed their Petition of Appeal wherein they raised the following grounds of appeal.
i) That the Honourable trial court erred in law and facts by failing to observe that the identification of Appellants as attackers was not proved to the required threshold which is proof beyond any reasonable doubt.
ii) That the Honourable trial court erred in law and facts be ignoring to consider that their rights under Article 49 and 50(2) of the Constitution 2010 were grossly violated without due consideration that they play to be one of the constitutionally unlimited rights under Article 25 of the Constitution.
iii) That the Honourable trial magistrate erred in law and facts by failing to note that the Appellants herein were not linked to any recovered exhibits in this particular case.
iv) That the Honourable trial magistrate erred in law and facts by not considering that the investigations carried out in this particular case were shoddy, unprofessional and unworthy to link the Appellants herein to the scene.
v) That the Honourable trial court erred in law and facts by not putting more weight on their induced alibi -defence which was the only available truth to be fully considered by the Honourable trial court.
The Appellants therefore prayed that the Honourable court issues orders quashing their conviction, setting aside the imposed life sentence, thus setting the Appellants at liberty, after re-evaluating the evidence on record.
3. This being a first appeal, this Court must reconsider and re-evaluate the evidence adduced before the trial Court so as to arrive at its independent findings and conclusion. (See Okeno vs. Republic [1972] EA 32). In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial court and, therefore, it ought to give due allowance in that respect as was held in Ajode v. Republic [2004] KLR 81 .
4. APC Olong’onyin Sirar Saitoti (PW1) testified that he is a constable working in Siaya. That on 12/11/2019 at 8.00 AM, he went to work at Equity Bank Siaya where he offers security services upto 5.00 pm. That he was with APC David Kiptoo at Equity Bank until 5.00 pm and that they went to renew firearms since they were to go and guard the County Commissioner’s place within Siaya. That he instructed his colleague to report first ahead of him as he was preparing his food first, thereafter, he proceeded to the County Commissioner’s office on foot which was a distance of about 3 kilometres from Siaya AP camp. That while near to the ACK Church, a motor cycle with three passengers on board arrived, one of them alighted and asked him to help them and that he advised them to seek help from police. That the man who had first alighted hit him from behind his head. That he struggled with him and that the man grabbed his gun which was an AK 47 Services No. 4849372 with 30 rounds of ammunition (6.62 millimetre special). That he fell down during the incident and that one of the assailants stepped on his back. That one of the assailants told the others to shoot him but one stated in Dholuo “wedi kodi wathi”, in English ‘’leave him, lets go’’. The assailants left him while unconscious. That when he recovered his consciousness, he found himself at Russia Hospital in Kisumu where he had been rushed by colleagues. That he saw Robert Seraphine (1 st Appellant) during the incident. He further stated that he was able to see him by use of intensive security lights that were from the treasury building. That the 2 nd and 3 rd Appellants stood near the ACK church where there was no electricity. That he was not able to mark the faces of the 2 nd and 3 rd Appellants. That the gun was recovered in Busia. That he identified the Daily Arms issue book which he signed in on 12/11/2019 for the issue of AK47 service gun number 4847372. That they robbed from him Kshs300/= together with a mobile phone make Viwa. That he identified his treatment notes and P3 form issued to him by the hospital.
On cross examination, he stated that he did not take note of the motor cycle registration number. That he was enabled by the intense electricity lights that shone from the treasury building to identify the 1 st Appellant during the incident. That he saw three assailants but which he did not record in his statement. That he did not give a description of his attackers to the police. That Sergeant Jason Maelo issued him with the gun. That he did not describe the assailants to the police. That Sergeant Jason Maelo issued him with the gun and that he did not tell them that he was attacked with a man and a woman. That he did not know anyone with the name Pamela Wambi, since the assailants attacked him from behind. That he struggled with one of the assailants. That they took away the gun. That they left him unconscious.
On re-examination, he stated that there was intensive electricity lights from the treasury building that enabled him to identify the 1 st Appellant.
5. No.2003054896 ASP Roselyn Onyonyi (PW2) testified that she was briefed by her predecessor Samuel Kariuki about the incident in that the complainant was on his way to the offices of the County Commissioner to perform guard duties whe he was attacked on the way and robbed of his AK 47 rifle. That on 26/11/2019 they received a signal from Busia police station that the stolen rifle had been recovered. That she went there and confirmed the recovery and that the firearm tallied with the records at the armory and that she produced the entry which contained details of the arms movement where the complainant had signed for the said firearm.
On cross-examination, she stated inter alia; that she did not witness the arrest of the Appellants; that there is a criminal case No. 3371 of 2019 at Busia law courts; that she did not know the person who was found in possession of the stolen rifle; that she was not aware if the complainant had visited the police station prior to the identification parade; that it is only the 1 st Appellant who agreed to participate in the identification parade; that she did not talk to PW1 prior to the parade; that there were nine parade members and that the 1 st Appellant stood between member number two and three in the parade; that she did not allow PW1 to come to the parade before it started and that the Appellants did not inform her that the complainant had seen them earlier.
6. Force No. 108232 Pc Willy Kiplagat (PW3) testified that he is based at Bungoma DCI Sub County headquarters, Bungoma County and that he performs general investigative duties. That in the year 2019, he was working at Busia DCI before being transferred. That he received a report on 25/11/2019 between 9.00 AM and 10.00 AM that members of public had called to inform that they had seen the suspects. That he was shown two men who were walking towards Busia town. That there was an officer at the Border Point, one Sergeant Kingara and others whom the witness requested to aid in arresting the suspects. That the two suspects arrived where the witness was and that they were stopped and who were informed that they were being suspected of having committed some crimes which had been reported to the police. That the witness was assisted by the officer at the Border Point to escort the suspect to Busia Police Station. That they interrogated the two suspects (1st and 2nd Appellants) and that they established that they were accomplices to Henry Lawi Alias Ali Alusa (3rd Appellant) who was in Busia. That the 1st Appellant led the officers up to where the 3rd Appellant was and where the gun, an AK 47 with serial number KEAP 4849372 had been hidden. That they established that the gun had been stolen from an Administration Police Officer (AP) from Siaya County who had been robbed and injured.
On cross examination by the 1 st Appellant, he stated inter alia; that he recorded his statement on 30/11/2019 and that he had received information from members of public who are not witnesses to the case. That the Appellants were placed in custody after their arrest and that the firearm was recovered on the same day of arrest. That they were booked in the OB after the firearm was recovered. That the Appellants are facing charges of robbery with violence where the State/Republic is the complainant. That it is the 1 st Appellant who identified the 3 rd Appellant
On cross examination by the 2 nd Appellant, the witness stated that he received information from a member of public but that he did not record his statement; that the Appellant had another case at Busia Court and that nothing was recovered from him at the time of arrest. He further stated that the 1 st Appellant is the one who implicated the 3 rd Appellant and led the officers in arresting him within Busia town.
On cross-examination by the 3 rd Appellant, he stated that nothing was recovered from him. That the 1 st Appellant implicated him as he led the officers up to where he was within a certain estate in Busia.
7. Force No. 237371 Inspector Hillary Kibor (PW4) testified that he is from Siaya Police station. That on 13/12/2019, he was requested by Inspector Kinuthia of DCI Siaya to assist him in conducting an identification parade in a robbery with violence case. That there was one witness who was to appear on that parade - APC Sirar Saitoti of CIPU Siaya Headquarters. That he informed both the parties to be involved of the exercise but it was only the 1 st Appellant who agreed to participate. That he selected nine men with the same height and complexion and that the 1 st Appellant chose to stand between position number two and three. That PW1 positively identified him by touching him. That he inquired from the 1 st Appellant whether he was satisfied with the parade exercise and who replied that he wasn’t satisfied as PW1 had seen him earlier.
On cross examination, he stated that he was not at the police cells prior to the police identification parade exercise. That he took all precautions three days prior to ensure that PW1 did not see the suspects prior to the exercise.
8. Force No. 220056, APC 19950550660 David Kiptoo (PW5) stated that he is currently working in Kapsaret Sub County, Eldoret town, Uasin Gishu County. That he recalls on 12/11/2019 while with APC Sirah Saitoti as they were going to work at the County Commissioner’s officer’s residence, he went to armory at Siaya County Commissioner’s office to take over guns and that he was ahead of Saitoti, and that Saitoti (complainant) failed to join him at work. That it took two hours before he called Sirah Saitoti who told the witness that he was on his way to work. That it was around 300 metres from the armory to Siaya County Commissioner’s office. That after the communication, Sirah Saitoti’s phone went off. That there was a member of public who saw Sirar being attacked. That colleagues called the witness and informed him that Sirar had been attacked. That he went to the scene and found that Sirar had been injured, bleeding from his head and was unconscious and that his phone had been snatched. That the witness called his bosses/in charges who came and took the complainant to hospital.
On cross examination, he stated that he reported to armory at 6.00 pm and that he took about 30 minutes while the complainant spent there about 2 hours. That it was a walking distance of 300 – 400 metres from the armory to Siaya County Commissioner’s residence. It was not regular for officers to depart for work place at different times. That the complainant was armed with AK 47 rifle. That a civilian saw the officer being attacked and who upon reported the matter to the police. That he had been beaten, unable to talk and he had to be operated. That the attackers had trailed the complainant and that they were on a motor cycle, they hit him and rode away. That he could not recount what had happened and that his gun had been snatched.
9. Brian Chengek Chemeng (PW6) of Practice ID No. 2265 and a holder of Diploma in Clinical Medicine and Surgery testified that he is a clinical officer working at Siaya County Referral Hospital for the past eight years. That he has a P3 form for Sirar Saitoti aged thirty (30) years old which was filled by his colleague Kennedy Opiyo and whom they have worked with for 6 ½ years and that he is conversant with his handwriting and signature. He stated that the first treatment was on 12/11/2019 and then the complainant was transferred to Jaramogi Oginga Odinga Hospital on 12/11/2019. That he was in jungle green uniform blood stained which were dry. That it was alleged that he had been assaulted on 12/11/2019 at 2000 hours by unknown people within Siaya Township and was left unconscious. That the patient was in pain but was stable. That there were healing extensive cut wounds with multiple bruises on the left side of the head and face. That there were also multiple bruises on the back and stiffness. That on the upper limb, there was a deep cut wound, the right hand had a cut wound which was deep and the right-hand tentacles were raptured. That the lower limbs were normal and that the injuries were four (4) weeks. That the probable weapon used to cause the injuries was a sharp object. The wounds were stitched and he was given medication as per the P3 form which was signed and stamped by the hospital’s stamp on 16/12/2019 and that X-ray was done. That the degree of injury was assessed to be grievous harm.
On cross-examination, he stated inter alia; that he had his appointment letters; that he has not availed the employment letter in court; that the patient was injured on 12/11/2019 and that he was attended to in hospital for injuries sustained from unknown people.
10. No. 237289 Chief Inspector Joseph Kinuthia ( PW7) testified that this case was reported on 12/11/2019 that Sirar Saitoti had been robbed of his official gun at the time he was going to work. That he was injured during the robbery. That they took the complainant for treatment and commenced investigations. That they called for the complainant’s work roster and gun register for the date of the incident and recorded witness statements. Further, he stated that on 26/11/2019 they received information that some people had been found with a gun and that they went to Busia. That they found out that the gun serial No. 4849372 had been discovered at Busia and which had been robbed from the complainant herein. That he went to Busia Court and requested that the accused be brought to Siaya for the police identification parade which was to be done by IP Kibor. That the 1 st Appellant accepted to attend the said parade whereas the other Appellants declined. That the complainant one Sirar Saitoti (PW1) positively identified the 1 st Appellant in that police parade. That Saitoti (PW1) positively identified the gun as the one he had been issued with and that the gun was taken to the ballistic analyst and a report thereto is in the police file. That he recorded the witness statement together with his investigations and made out his directions that the accused persons attacked the complainant, injured him and snatched his official gun and escaped to Busia. That he handed his file to DPP for further directions and that the gun is before court. That PW1 had been given the gun for his official work and that it belonged to the Government of Kenya vide the duty roster and the firearm register which were produced as exhibits. That he also produced the ballistic report, the gun namely AK 47 serial No. 4849372 as well as police parade identification form.
On cross-examination, he stated inter alia; that Pamela Wambia arrived at the scene of crime and that PW1 informed her that he had been attacked by three people; that the complainant identified the attackers with the help of security lights from a nearby building; that the complainant remained behind as his colleague proceeded to the work place and that he was to join him later; that the gun was found in the 1 st Appellant’s brother’s home; that finger print dusting on the gun was not done.
11. The trial court later established that a prima facie case had been established against the Appellants herein who were thus placed on their defence.
12. Robert Seraphine Ogallo (DW1) testified that he is a residence of Mundika Shopping Centre in Busia town an that he has been working with Military Unit before his arrest. That he has worked with Kenya Defence Forces within the rank of Lieutenant or a section Commander in the 19 th Amant Battalion of Kenya Riffles since 1998 at the age of 26. That he worked until 2014 when he resigned from the KDF and that he applied to go outside the country. That he went to Ruanda as a Drilling Instructor after being cleared by Interpol, that he was taken to train the British Royal Army about quarter buttons and logistics in 2016 and that he was working in the Special Unit. That in 2017 he was deployed to DRC in Kisangani as a regiment commander at the rank of Colonel. That he took leave on 19 th November 2019 which was to expire on 15 th January 2020. That on 26/11/2019 he travelled to Kenya from DRC through Ruanda then Uganda into Kenya. That while at home he was alerted by his brother’s worker that several strangers had turned up and picked up his brother one Patrick Lumumba. That he called people from neighbourhood to join him at the police station to find out. That at the police station he met the same police officers whom he had earlier in the year 2011 lodged a complaint against them for assaulting him. That the said officers turned against him and placed him in custody. That he lost six thousand dollars, Ugandan currency 120,000 as well as Kshs200,000/= plus some Ruandan currency. That he lost his Kenyan ID, Ruandan ID, military ID, International Passport, Interpol work permit, East African Temporary Passport, KCB Mastercard, Equity Bank Master Card, Commercial Bank of Africa Visa Card, Academic Certificates and mobile phones. That he produced a P3 form as his Defence Exhibit 1, receipt DEXH 2, Court Order from Busia CM’s Court DEXH 3, OB report and Number (Exhibit DEXH 4 and 5). That he was in police custody for 13 days after being moved from one police station to another. That his arrest was in connection with PW1’s gun which was recovered from his brother’s house and whose body was recovered from River Yala in December 2012 in a sack. That his brother Lumumba died as well as his two neighbours as their bodies were also found in the same River Yala. That he has never known why he was arrested. That he is aware that the police took away his brother’s life. That he was not present when the gun was recovered. That his late brother was a police officer. That he has been fixed in this case. That before the gun was reported as stolen in Siaya, it had been used in some robberies in Busia and Siaya. That the robbery cases regarding the use of the alleged stolen gun were already ongoing in Busia, for instance, vide Criminal Case 3371/2019. That he did not commit the offence. That he has never met the 2 nd or 3 rd Appellants. That he had been a law-abiding citizen and never committed criminal offence. That this is the 6 th year that he is behind bars since he was denied bond. That he has been implicated in this case because he was pursuing the death of his brother who was killed by police. That he was implicated because of the differences he had with the Busia Police Officers.
On being cross examined by Mr. Mwangi, he stated inter alia; that the stolen firearm was recovered from his brother’s house; that his brother was a police officer; that he has not exited from the military; that he has experience on the use of firearms; that Saitoti (PW1) did not know the people who robbed him since he did not positively identify him in the police ID parade; that he has a receipt to prove that he travelled from Ruanda to Busia; that he was arrested on 26/11/2019; that the police fabricated this offence against him because he had complained against them at Busia Police Station and also he was to follow up over the death of his brother.
The 2 nd and 3 rd Appellants did not have any question for him.
13. Michael Odongo Wesonga (DW2) testified that he was arrested on Tuesday 26/11/2019 at 12.00 noon. That he was at his work place where he works as a hawker who sells flasks, bedsheets and blankets. That a customer came to Busia District Hospital where he was doing his business. That he then sold to him a flask and the customer went away. That after an hour, the same customer came back alleging that he had been given fake money. That the customer came with police officers from Busia police station and they arrested him and took him up to Busia police station where he was detained in the police cells upto 9 th December 2019. On 19/12/2019, he was taken to Siaya Law Courts for plea. He was jointly charged with people he does not know. That he does not know the charges in this case and that he has been in custody for long yet he is sick. That the investigation officer did not find from his chief whether he has ever committed any criminal offences.
On cross examination, he stated that he was surprised that he was charged with this case. That he is a hawker at Busia. That one customer alleged that he had given him fake money. He further stated that he had never seen the 1 st accused and had only seen him in court and that he had never seen the 3 rd accused prior to this case and that they have never transacted any business with the 3 rd accused.
14. Ali Juma Alias Henry Lawi (DW3) testified that on 26/11/2019 he woke up as usual and that he travelled to Busia. That upon arrival at Busia, he crossed the border to Uganda and took beer as usual. That he used the shortcut route and reached at the roadblock at Busia. The vehicle he had hit another vehicle from behind at 9.00 am and that he took the beer upto Kakamega and that when he came back for the second time, Esther from Dudi in Siaya County called him and requested him to supply beer and that he informed her that he did not have money and so she sent him Kshs17,000/= shillings which he used to buy beer and took to her. That when he reached Dudi in Siaya, he was called by his boss who is the owner of the vehicle inquiring about the vehicle. That his boss who is the owner of the vehicle he was driving requested him to send the number of the person whose vehicle he had hit from behind and who requested him to go to Busia police station. That upon arrival, he was detained because, apparently, the owner of the vehicle he had hit turned out to be the DCIO. That he was detained upto 9 th December 2019 and that he was taken to Busia Court. That he denied the charges and was later taken to Siaya where he was charged with robbery with violence alongside other people whom he did not know and of the charge he was not aware of as well.
On cross examination by the prosecutor Mr. Mwangi, he stated inter alia; that his boss died in February 2021 and who could have been his witness; that he does not know the 1 st accused herein; that he was arrested because of trading in beer.
On cross examination by the 1 st and 2 nd Appellants, he stated that he did not know if he did not know them and that he had never carried out business with them.
15. The appeal was canvassed by way of written submissions. It is only the Appellants who complied.
16. The 1 st Appellants submissions are dated 20/11/2025 and those of the 2 nd Appellant are dated 15.1.2025 while those of the 3 rd Appellant are dated 14 th January 2025. They raise almost similar issues.
17. The gist of the Appellants’ submission revolve around the issue of improper identification exercise conducted by the police, inconsistencies in the testimonies of witnesses, absence of proper identification of the Appellants by the witnesses and imposition of excessive sentences by the trial court. The Appellants therefore have urged this court to quash the conviction and set aside the sentences imposed.
18. I have considered the record of appeal and the submissions filed. I find the issue for determination is whether the charge of robbery with violence contrary to Section 296 (2) of the Penal Code was proved by the Respondent against the Appellants herein beyond any reasonable doubt.
19. It is trite law that the burden of proof in criminal cases is always upon the prosecution to discharge and that the standard is one of beyond reasonable doubt. See Woolmington Vs DPP [1935] AC 462.
20. The offence of robbery with violence under Section 296 provides that 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. The Court of Appeal in the Case of John Kariuki Gikonyo Vs Republic [2019] eKLR the Court held that the ingredients of the offence of robbery with violence are inter alia; offender is armed with any dangerous or offensive weapon or instrument; if he is in the company with one or more other person or persons, if at or immediately after the time of robbery who wounds, beats, strikes or uses any other violence to any person. The court went further to hold that proof of any one of the ingredients of robbery with violence is enough to sustain a conviction. Again, in the case of Johana Ndungu Vs Republic [1996] eKLR the ingredients of the offence of robbery with violence were stated to be as follows:
“In order to appreciate as to what acts constitute an offence under section 296 (2) of the Penal Code, one must consider the subsection in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in section 296(2) which we give below and any of which if proved will constitute the offence under the subsection:
1. If the offender is armed with any dangerous or offensive weapon or instrument;
2. If he is in company with one or more other person or persons, or;
3. If at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other violence to any person.’’
21. All the Appellants have contended that the identification process was flawed and therefore the eventual conviction based on such a process was unsafe and should be quashed. The Appellants further contended that the ingredients of the offence were not proved beyond reasonable doubt and finally that the sentences imposed are manifestly excessive in the circumstances.
22. It is noted that the complainant (PW1) herein was the one who was attacked while on his way to the office of the County Commissioner of Siaya having left his colleague to proceed earlier and therefore he was then walking alone while armed with an AK 47 riffle. His evidence was as follows.
APC Olong’onyin Sirar Saitoti (PW1) testified that he is a constable working in Siaya. That on 12/11/2019 at 8.00 am he went to work at Equity Bank Siaya where he offers security services upto 5.00 pm. That he was with APC David Kiptoo at Equity Bank until 5.00 pm and that they went to renew firearms since they were to go and guard a County Commissioner’s place within Siaya. That he told APC David Kiptoo to report first ahead of him as he was preparing his food first, thereafter, he proceeded to County Commissioner’s office on foot which was a distance of about 3 kilometres from Siaya AP camp. That while near to the ACK Church a motor cycle with three passengers on board arrived, one of them alighted and asked him to help them and that he advised them to seek help from police. That that man who had first alighted hit him from behind his head. That he struggled with him. that he grabbed his gun which was AK 47 Services NO. 4849372 with 30 rounds of ammunition f 6.62 million special. That he fell down during the incident and that one of the assailants stepped on his back. That one of the assailants told the others to shoot him but one said in dholuo “wedi kodi wathi”, in English leave him, lets go. The assailants left him while unconscious. That when he recovered his conscience, he was at Russia Hospital in Kisumu where he was taken by colleagues. That he saw Robert Seraphine during the incident. He further stated that he was able to see the 1 st accused by use of intensive security lights that were from the treasury building. That accused 2 and 3 stood near the ACK church where there was no electricity. That he was not able to mark the face of Accused 2 and 3. That the gun was recovered at Busia. That he produced his Daily Arms issue book which he signed in on 12/11/2019 for AK 47 service 4847372 gun. That they robbed from him Kshs300/= together with a mobile phone make Viwa. That he produced his treatment notes and P3 form as exhibits.
On cross examination, he stated that he did not take note of the motor cycle registration number. That he was enabled by the intense electricity lights that shone from the nearby treasury building
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1. The appeal arises from the judgment of Hon. M.O. Wambani (CM) in Siaya Chief Magistrates’ Court Criminal Case No. 1194 of 2019 wherein she convicted and sentenced the Appellants to life imprisonment for the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. Being aggrieved by the said conviction and sentence, the Appellants filed their Petition of Appeal wherein they raised the following grounds of appeal.
i) That the Honourable trial court erred in law and facts by failing to observe that the identification of Appellants as attackers was not proved to the required threshold which is proof beyond any reasonable doubt.
ii) That the Honourable trial court erred in law and facts be ignoring to consider that their rights under Article 49 and 50(2) of the Constitution 2010 were grossly violated without due consideration that they play to be one of the constitutionally unlimited rights under Article 25 of the Constitution.
iii) That the Honourable trial magistrate erred in law and facts by failing to note that the Appellants herein were not linked to any recovered exhibits in this particular case.
iv) That the Honourable trial magistrate erred in law and facts by not considering that the investigations carried out in this particular case were shoddy, unprofessional and unworthy to link the Appellants herein to the scene.
v) That the Honourable trial court erred in law and facts by not putting more weight on their induced alibi -defence which was the only available truth to be fully considered by the Honourable trial court.
The Appellants therefore prayed that the Honourable court issues orders quashing their conviction, setting aside the imposed life sentence, thus setting the Appellants at liberty, after re-evaluating the evidence on record.
3. This being a first appeal, this Court must reconsider and re-evaluate the evidence adduced before the trial Court so as to arrive at its independent findings and conclusion. (See Okeno vs. Republic [1972] EA 32). In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial court and, therefore, it ought to give due allowance in that respect as was held in Ajode v. Republic [2004] KLR 81 .
4. APC Olong’onyin Sirar Saitoti (PW1) testified that he is a constable working in Siaya. That on 12/11/2019 at 8.00 AM, he went to work at Equity Bank Siaya where he offers security services upto 5.00 pm. That he was with APC David Kiptoo at Equity Bank until 5.00 pm and that they went to renew firearms since they were to go and guard the County Commissioner’s place within Siaya. That he instructed his colleague to report first ahead of him as he was preparing his food first, thereafter, he proceeded to the County Commissioner’s office on foot which was a distance of about 3 kilometres from Siaya AP camp. That while near to the ACK Church, a motor cycle with three passengers on board arrived, one of them alighted and asked him to help them and that he advised them to seek help from police. That the man who had first alighted hit him from behind his head. That he struggled with him and that the man grabbed his gun which was an AK 47 Services No. 4849372 with 30 rounds of ammunition (6.62 millimetre special). That he fell down during the incident and that one of the assailants stepped on his back. That one of the assailants told the others to shoot him but one stated in Dholuo “wedi kodi wathi”, in English ‘’leave him, lets go’’. The assailants left him while unconscious. That when he recovered his consciousness, he found himself at Russia Hospital in Kisumu where he had been rushed by colleagues. That he saw Robert Seraphine (1 st Appellant) during the incident. He further stated that he was able to see him by use of intensive security lights that were from the treasury building. That the 2 nd and 3 rd Appellants stood near the ACK church where there was no electricity. That he was not able to mark the faces of the 2 nd and 3 rd Appellants. That the gun was recovered in Busia. That he identified the Daily Arms issue book which he signed in on 12/11/2019 for the issue of AK47 service gun number 4847372. That they robbed from him Kshs300/= together with a mobile phone make Viwa. That he identified his treatment notes and P3 form issued to him by the hospital.
On cross examination, he stated that he did not take note of the motor cycle registration number. That he was enabled by the intense electricity lights that shone from the treasury building to identify the 1 st Appellant during the incident. That he saw three assailants but which he did not record in his statement. That he did not give a description of his attackers to the police. That Sergeant Jason Maelo issued him with the gun. That he did not describe the assailants to the police. That Sergeant Jason Maelo issued him with the gun and that he did not tell them that he was attacked with a man and a woman. That he did not know anyone with the name Pamela Wambi, since the assailants attacked him from behind. That he struggled with one of the assailants. That they took away the gun. That they left him unconscious.
On re-examination, he stated that there was intensive electricity lights from the treasury building that enabled him to identify the 1 st Appellant.
5. No.2003054896 ASP Roselyn Onyonyi (PW2) testified that she was briefed by her predecessor Samuel Kariuki about the incident in that the complainant was on his way to the offices of the County Commissioner to perform guard duties whe he was attacked on the way and robbed of his AK 47 rifle. That on 26/11/2019 they received a signal from Busia police station that the stolen rifle had been recovered. That she went there and confirmed the recovery and that the firearm tallied with the records at the armory and that she produced the entry which contained details of the arms movement where the complainant had signed for the said firearm.
On cross-examination, she stated inter alia; that she did not witness the arrest of the Appellants; that there is a criminal case No. 3371 of 2019 at Busia law courts; that she did not know the person who was found in possession of the stolen rifle; that she was not aware if the complainant had visited the police station prior to the identification parade; that it is only the 1 st Appellant who agreed to participate in the identification parade; that she did not talk to PW1 prior to the parade; that there were nine parade members and that the 1 st Appellant stood between member number two and three in the parade; that she did not allow PW1 to come to the parade before it started and that the Appellants did not inform her that the complainant had seen them earlier.
6. Force No. 108232 Pc Willy Kiplagat (PW3) testified that he is based at Bungoma DCI Sub County headquarters, Bungoma County and that he performs general investigative duties. That in the year 2019, he was working at Busia DCI before being transferred. That he received a report on 25/11/2019 between 9.00 AM and 10.00 AM that members of public had called to inform that they had seen the suspects. That he was shown two men who were walking towards Busia town. That there was an officer at the Border Point, one Sergeant Kingara and others whom the witness requested to aid in arresting the suspects. That the two suspects arrived where the witness was and that they were stopped and who were informed that they were being suspected of having committed some crimes which had been reported to the police. That the witness was assisted by the officer at the Border Point to escort the suspect to Busia Police Station. That they interrogated the two suspects (1st and 2nd Appellants) and that they established that they were accomplices to Henry Lawi Alias Ali Alusa (3rd Appellant) who was in Busia. That the 1st Appellant led the officers up to where the 3rd Appellant was and where the gun, an AK 47 with serial number KEAP 4849372 had been hidden. That they established that the gun had been stolen from an Administration Police Officer (AP) from Siaya County who had been robbed and injured.
On cross examination by the 1 st Appellant, he stated inter alia; that he recorded his statement on 30/11/2019 and that he had received information from members of public who are not witnesses to the case. That the Appellants were placed in custody after their arrest and that the firearm was recovered on the same day of arrest. That they were booked in the OB after the firearm was recovered. That the Appellants are facing charges of robbery with violence where the State/Republic is the complainant. That it is the 1 st Appellant who identified the 3 rd Appellant
On cross examination by the 2 nd Appellant, the witness stated that he received information from a member of public but that he did not record his statement; that the Appellant had another case at Busia Court and that nothing was recovered from him at the time of arrest. He further stated that the 1 st Appellant is the one who implicated the 3 rd Appellant and led the officers in arresting him within Busia town.
On cross-examination by the 3 rd Appellant, he stated that nothing was recovered from him. That the 1 st Appellant implicated him as he led the officers up to where he was within a certain estate in Busia.
7. Force No. 237371 Inspector Hillary Kibor (PW4) testified that he is from Siaya Police station. That on 13/12/2019, he was requested by Inspector Kinuthia of DCI Siaya to assist him in conducting an identification parade in a robbery with violence case. That there was one witness who was to appear on that parade - APC Sirar Saitoti of CIPU Siaya Headquarters. That he informed both the parties to be involved of the exercise but it was only the 1 st Appellant who agreed to participate. That he selected nine men with the same height and complexion and that the 1 st Appellant chose to stand between position number two and three. That PW1 positively identified him by touching him. That he inquired from the 1 st Appellant whether he was satisfied with the parade exercise and who replied that he wasn’t satisfied as PW1 had seen him earlier.
On cross examination, he stated that he was not at the police cells prior to the police identification parade exercise. That he took all precautions three days prior to ensure that PW1 did not see the suspects prior to the exercise.
8. Force No. 220056, APC 19950550660 David Kiptoo (PW5) stated that he is currently working in Kapsaret Sub County, Eldoret town, Uasin Gishu County. That he recalls on 12/11/2019 while with APC Sirah Saitoti as they were going to work at the County Commissioner’s officer’s residence, he went to armory at Siaya County Commissioner’s office to take over guns and that he was ahead of Saitoti, and that Saitoti (complainant) failed to join him at work. That it took two hours before he called Sirah Saitoti who told the witness that he was on his way to work. That it was around 300 metres from the armory to Siaya County Commissioner’s office. That after the communication, Sirah Saitoti’s phone went off. That there was a member of public who saw Sirar being attacked. That colleagues called the witness and informed him that Sirar had been attacked. That he went to the scene and found that Sirar had been injured, bleeding from his head and was unconscious and that his phone had been snatched. That the witness called his bosses/in charges who came and took the complainant to hospital.
On cross examination, he stated that he reported to armory at 6.00 pm and that he took about 30 minutes while the complainant spent there about 2 hours. That it was a walking distance of 300 – 400 metres from the armory to Siaya County Commissioner’s residence. It was not regular for officers to depart for work place at different times. That the complainant was armed with AK 47 rifle. That a civilian saw the officer being attacked and who upon reported the matter to the police. That he had been beaten, unable to talk and he had to be operated. That the attackers had trailed the complainant and that they were on a motor cycle, they hit him and rode away. That he could not recount what had happened and that his gun had been snatched.
9. Brian Chengek Chemeng (PW6) of Practice ID No. 2265 and a holder of Diploma in Clinical Medicine and Surgery testified that he is a clinical officer working at Siaya County Referral Hospital for the past eight years. That he has a P3 form for Sirar Saitoti aged thirty (30) years old which was filled by his colleague Kennedy Opiyo and whom they have worked with for 6 ½ years and that he is conversant with his handwriting and signature. He stated that the first treatment was on 12/11/2019 and then the complainant was transferred to Jaramogi Oginga Odinga Hospital on 12/11/2019. That he was in jungle green uniform blood stained which were dry. That it was alleged that he had been assaulted on 12/11/2019 at 2000 hours by unknown people within Siaya Township and was left unconscious. That the patient was in pain but was stable. That there were healing extensive cut wounds with multiple bruises on the left side of the head and face. That there were also multiple bruises on the back and stiffness. That on the upper limb, there was a deep cut wound, the right hand had a cut wound which was deep and the right-hand tentacles were raptured. That the lower limbs were normal and that the injuries were four (4) weeks. That the probable weapon used to cause the injuries was a sharp object. The wounds were stitched and he was given medication as per the P3 form which was signed and stamped by the hospital’s stamp on 16/12/2019 and that X-ray was done. That the degree of injury was assessed to be grievous harm.
On cross-examination, he stated inter alia; that he had his appointment letters; that he has not availed the employment letter in court; that the patient was injured on 12/11/2019 and that he was attended to in hospital for injuries sustained from unknown people.
10. No. 237289 Chief Inspector Joseph Kinuthia ( PW7) testified that this case was reported on 12/11/2019 that Sirar Saitoti had been robbed of his official gun at the time he was going to work. That he was injured during the robbery. That they took the complainant for treatment and commenced investigations. That they called for the complainant’s work roster and gun register for the date of the incident and recorded witness statements. Further, he stated that on 26/11/2019 they received information that some people had been found with a gun and that they went to Busia. That they found out that the gun serial No. 4849372 had been discovered at Busia and which had been robbed from the complainant herein. That he went to Busia Court and requested that the accused be brought to Siaya for the police identification parade which was to be done by IP Kibor. That the 1 st Appellant accepted to attend the said parade whereas the other Appellants declined. That the complainant one Sirar Saitoti (PW1) positively identified the 1 st Appellant in that police parade. That Saitoti (PW1) positively identified the gun as the one he had been issued with and that the gun was taken to the ballistic analyst and a report thereto is in the police file. That he recorded the witness statement together with his investigations and made out his directions that the accused persons attacked the complainant, injured him and snatched his official gun and escaped to Busia. That he handed his file to DPP for further directions and that the gun is before court. That PW1 had been given the gun for his official work and that it belonged to the Government of Kenya vide the duty roster and the firearm register which were produced as exhibits. That he also produced the ballistic report, the gun namely AK 47 serial No. 4849372 as well as police parade identification form.
On cross-examination, he stated inter alia; that Pamela Wambia arrived at the scene of crime and that PW1 informed her that he had been attacked by three people; that the complainant identified the attackers with the help of security lights from a nearby building; that the complainant remained behind as his colleague proceeded to the work place and that he was to join him later; that the gun was found in the 1 st Appellant’s brother’s home; that finger print dusting on the gun was not done.
11. The trial court later established that a prima facie case had been established against the Appellants herein who were thus placed on their defence.
12. Robert Seraphine Ogallo (DW1) testified that he is a residence of Mundika Shopping Centre in Busia town an that he has been working with Military Unit before his arrest. That he has worked with Kenya Defence Forces within the rank of Lieutenant or a section Commander in the 19 th Amant Battalion of Kenya Riffles since 1998 at the age of 26. That he worked until 2014 when he resigned from the KDF and that he applied to go outside the country. That he went to Ruanda as a Drilling Instructor after being cleared by Interpol, that he was taken to train the British Royal Army about quarter buttons and logistics in 2016 and that he was working in the Special Unit. That in 2017 he was deployed to DRC in Kisangani as a regiment commander at the rank of Colonel. That he took leave on 19 th November 2019 which was to expire on 15 th January 2020. That on 26/11/2019 he travelled to Kenya from DRC through Ruanda then Uganda into Kenya. That while at home he was alerted by his brother’s worker that several strangers had turned up and picked up his brother one Patrick Lumumba. That he called people from neighbourhood to join him at the police station to find out. That at the police station he met the same police officers whom he had earlier in the year 2011 lodged a complaint against them for assaulting him. That the said officers turned against him and placed him in custody. That he lost six thousand dollars, Ugandan currency 120,000 as well as Kshs200,000/= plus some Ruandan currency. That he lost his Kenyan ID, Ruandan ID, military ID, International Passport, Interpol work permit, East African Temporary Passport, KCB Mastercard, Equity Bank Master Card, Commercial Bank of Africa Visa Card, Academic Certificates and mobile phones. That he produced a P3 form as his Defence Exhibit 1, receipt DEXH 2, Court Order from Busia CM’s Court DEXH 3, OB report and Number (Exhibit DEXH 4 and 5). That he was in police custody for 13 days after being moved from one police station to another. That his arrest was in connection with PW1’s gun which was recovered from his brother’s house and whose body was recovered from River Yala in December 2012 in a sack. That his brother Lumumba died as well as his two neighbours as their bodies were also found in the same River Yala. That he has never known why he was arrested. That he is aware that the police took away his brother’s life. That he was not present when the gun was recovered. That his late brother was a police officer. That he has been fixed in this case. That before the gun was reported as stolen in Siaya, it had been used in some robberies in Busia and Siaya. That the robbery cases regarding the use of the alleged stolen gun were already ongoing in Busia, for instance, vide Criminal Case 3371/2019. That he did not commit the offence. That he has never met the 2 nd or 3 rd Appellants. That he had been a law-abiding citizen and never committed criminal offence. That this is the 6 th year that he is behind bars since he was denied bond. That he has been implicated in this case because he was pursuing the death of his brother who was killed by police. That he was implicated because of the differences he had with the Busia Police Officers.
On being cross examined by Mr. Mwangi, he stated inter alia; that the stolen firearm was recovered from his brother’s house; that his brother was a police officer; that he has not exited from the military; that he has experience on the use of firearms; that Saitoti (PW1) did not know the people who robbed him since he did not positively identify him in the police ID parade; that he has a receipt to prove that he travelled from Ruanda to Busia; that he was arrested on 26/11/2019; that the police fabricated this offence against him because he had complained against them at Busia Police Station and also he was to follow up over the death of his brother.
The 2 nd and 3 rd Appellants did not have any question for him.
13. Michael Odongo Wesonga (DW2) testified that he was arrested on Tuesday 26/11/2019 at 12.00 noon. That he was at his work place where he works as a hawker who sells flasks, bedsheets and blankets. That a customer came to Busia District Hospital where he was doing his business. That he then sold to him a flask and the customer went away. That after an hour, the same customer came back alleging that he had been given fake money. That the customer came with police officers from Busia police station and they arrested him and took him up to Busia police station where he was detained in the police cells upto 9 th December 2019. On 19/12/2019, he was taken to Siaya Law Courts for plea. He was jointly charged with people he does not know. That he does not know the charges in this case and that he has been in custody for long yet he is sick. That the investigation officer did not find from his chief whether he has ever committed any criminal offences.
On cross examination, he stated that he was surprised that he was charged with this case. That he is a hawker at Busia. That one customer alleged that he had given him fake money. He further stated that he had never seen the 1 st accused and had only seen him in court and that he had never seen the 3 rd accused prior to this case and that they have never transacted any business with the 3 rd accused.
14. Ali Juma Alias Henry Lawi (DW3) testified that on 26/11/2019 he woke up as usual and that he travelled to Busia. That upon arrival at Busia, he crossed the border to Uganda and took beer as usual. That he used the shortcut route and reached at the roadblock at Busia. The vehicle he had hit another vehicle from behind at 9.00 am and that he took the beer upto Kakamega and that when he came back for the second time, Esther from Dudi in Siaya County called him and requested him to supply beer and that he informed her that he did not have money and so she sent him Kshs17,000/= shillings which he used to buy beer and took to her. That when he reached Dudi in Siaya, he was called by his boss who is the owner of the vehicle inquiring about the vehicle. That his boss who is the owner of the vehicle he was driving requested him to send the number of the person whose vehicle he had hit from behind and who requested him to go to Busia police station. That upon arrival, he was detained because, apparently, the owner of the vehicle he had hit turned out to be the DCIO. That he was detained upto 9 th December 2019 and that he was taken to Busia Court. That he denied the charges and was later taken to Siaya where he was charged with robbery with violence alongside other people whom he did not know and of the charge he was not aware of as well.
On cross examination by the prosecutor Mr. Mwangi, he stated inter alia; that his boss died in February 2021 and who could have been his witness; that he does not know the 1 st accused herein; that he was arrested because of trading in beer.
On cross examination by the 1 st and 2 nd Appellants, he stated that he did not know if he did not know them and that he had never carried out business with them.
15. The appeal was canvassed by way of written submissions. It is only the Appellants who complied.
16. The 1 st Appellants submissions are dated 20/11/2025 and those of the 2 nd Appellant are dated 15.1.2025 while those of the 3 rd Appellant are dated 14 th January 2025. They raise almost similar issues.
17. The gist of the Appellants’ submission revolve around the issue of improper identification exercise conducted by the police, inconsistencies in the testimonies of witnesses, absence of proper identification of the Appellants by the witnesses and imposition of excessive sentences by the trial court. The Appellants therefore have urged this court to quash the conviction and set aside the sentences imposed.
18. I have considered the record of appeal and the submissions filed. I find the issue for determination is whether the charge of robbery with violence contrary to Section 296 (2) of the Penal Code was proved by the Respondent against the Appellants herein beyond any reasonable doubt.
19. It is trite law that the burden of proof in criminal cases is always upon the prosecution to discharge and that the standard is one of beyond reasonable doubt. See Woolmington Vs DPP [1935] AC 462.
20. The offence of robbery with violence under Section 296 provides that 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. The Court of Appeal in the Case of John Kariuki Gikonyo Vs Republic [2019] eKLR the Court held that the ingredients of the offence of robbery with violence are inter alia; offender is armed with any dangerous or offensive weapon or instrument; if he is in the company with one or more other person or persons, if at or immediately after the time of robbery who wounds, beats, strikes or uses any other violence to any person. The court went further to hold that proof of any one of the ingredients of robbery with violence is enough to sustain a conviction. Again, in the case of Johana Ndungu Vs Republic [1996] eKLR the ingredients of the offence of robbery with violence were stated to be as follows:
“In order to appreciate as to what acts constitute an offence under section 296 (2) of the Penal Code, one must consider the subsection in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in section 296(2) which we give below and any of which if proved will constitute the offence under the subsection:
1. If the offender is armed with any dangerous or offensive weapon or instrument;
2. If he is in company with one or more other person or persons, or;
3. If at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other violence to any person.’’
21. All the Appellants have contended that the identification process was flawed and therefore the eventual conviction based on such a process was unsafe and should be quashed. The Appellants further contended that the ingredients of the offence were not proved beyond reasonable doubt and finally that the sentences imposed are manifestly excessive in the circumstances.
22. It is noted that the complainant (PW1) herein was the one who was attacked while on his way to the office of the County Commissioner of Siaya having left his colleague to proceed earlier and therefore he was then walking alone while armed with an AK 47 riffle. His evidence was as follows.
APC Olong’onyin Sirar Saitoti (PW1) testified that he is a constable working in Siaya. That on 12/11/2019 at 8.00 am he went to work at Equity Bank Siaya where he offers security services upto 5.00 pm. That he was with APC David Kiptoo at Equity Bank until 5.00 pm and that they went to renew firearms since they were to go and guard a County Commissioner’s place within Siaya. That he told APC David Kiptoo to report first ahead of him as he was preparing his food first, thereafter, he proceeded to County Commissioner’s office on foot which was a distance of about 3 kilometres from Siaya AP camp. That while near to the ACK Church a motor cycle with three passengers on board arrived, one of them alighted and asked him to help them and that he advised them to seek help from police. That that man who had first alighted hit him from behind his head. That he struggled with him. that he grabbed his gun which was AK 47 Services NO. 4849372 with 30 rounds of ammunition f 6.62 million special. That he fell down during the incident and that one of the assailants stepped on his back. That one of the assailants told the others to shoot him but one said in dholuo “wedi kodi wathi”, in English leave him, lets go. The assailants left him while unconscious. That when he recovered his conscience, he was at Russia Hospital in Kisumu where he was taken by colleagues. That he saw Robert Seraphine during the incident. He further stated that he was able to see the 1 st accused by use of intensive security lights that were from the treasury building. That accused 2 and 3 stood near the ACK church where there was no electricity. That he was not able to mark the face of Accused 2 and 3. That the gun was recovered at Busia. That he produced his Daily Arms issue book which he signed in on 12/11/2019 for AK 47 service 4847372 gun. That they robbed from him Kshs300/= together with a mobile phone make Viwa. That he produced his treatment notes and P3 form as exhibits.
On cross examination, he stated that he did not take note of the motor cycle registration number. That he was enabled by the intense electricity lights that shone from the nearby treasury building
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