' (Being an appeal from the conviction and sentence delivered on 30th March 2023 and 26th April 2023 respectively by Hon. F. Mutuku, Principal Magistrate in Wang’uru Magistrates Court Criminal Case No. 202 of 2020)
1. The appellant was charged with two counts of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 7th June 2020 at Kutus Mjini township in Mwea East Sub-County within Kirinyaga County, jointly with others not before court robbed the complainants hereinbelow:
i. Count I: Stephen Wachira Njiraini was robbed of a mobile phone make Samsung and cash KShs 100/= all valued at KShs 15,100/= and at or immediately before or immediately after the time of such robbery wounded the said Stephen Wachira Njiraini.
ii. Count II: Lorna Musyawa of a mobile phone make Infinix smart Two valued at KShs 13,000/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said Lorna Musyawa.
2. The appellant was acquitted on the second count for lack of evidence as the complainant Lorna Musyawa failed to attend court to testify. He was convicted on the first count and sentenced to suffer death. He was aggrieved by the conviction and sentence and preferred this appeal through his undated memorandum raising the following grounds:
i. the learned trial magistrate erred in law and fact by failing to appreciate the fact that the alleged victim clearly demonstrated an incredibly doubtful integrity and whose evidence remains doubtful.
ii. the learned trial magistrate erred both in law and fact by failing to appreciate that the critical elements of the offence of robbery with violence were not proved to the required standard in law.
iii. the learned trial magistrate erred in law and fact by failing to consider that the whole of the prosecution evidence was riddled with material discrepancies which were capable of unsettling the verdict.
iv. the learned trial magistrate failed to consider the appellant’s defence that was plausible and not contested or disproved by the prosecution demonstrating that the case was a frame-up for envious reasons to curtail the appellant’s success.
v. the instant matters proof was below the required standards of proof and therefore capable of impeaching the whole substance of the matter (sic).
3. The appellant therefore prays that the appeal be allowed in its entirety.
4. The appeal was disposed of by way of written submissions filed by the appellant and learned counsel for the respondent.
5. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
6. The prosecution called four witnesses to support its case.
7. PW 1, Stephen Wachira, the complainant in count 1 testified that on the evening of 7th May 2020 he was at his sister’s home when he decided to go to river Thiba, about 50 to 100 metres away to relax there. He was listening to music on his phone, Samsung Galaxy A105 and had KShs 100/= on the cover of the phone when three men appeared from a forest nearby next to Kirinyaga university. One of them grabbed his phone and when he offered resistance another one struggled with him and hit him on the forehead with a metal bar. He briefly lost consciousness. He testified that he had properly seen the man who hit him on the forehead with the metal bar. He testified that when he got up, a neighbor had witnessed the incident. Other people joined them and they launched a manhunt for the assailants. They arrested the man with the metal bar, the appellant herein and took him to Mjini police post where he also recorded his statement. He received treatment at Kerugoya County hospital (Exh. 1) and his P3 form (Exh. 2) was also completed there. He also produced a yellow T-shirt and mask that he was wearing at the time of the incident and both were blood stained. The metal bar (Exh. 4) which he also identified as the assault weapon was also produced in evidence.
8. In cross-examination PW 1 said that the second complaint Lorna Musiani was known to him but he did not see her during the incident and that she was where the appellant was arrested.
9. PW 2 PC Boniface Ributhi was working at Kutus police post at the time on 7th June 2020 when the appellant and another man were taken to the police post on allegations of having stolen phones. The complainant was one of the victims and he was injured on the head and his clothes and mask were stained with blood. The following day, 8th June 2020 an Infinix phone, said to be among those stolen the previous day, was taken to the police station by one Mohammed Kamau and it was said that the person who had it took off. The second complainant, Lorna Musyawa identified it as her phone. She had been with PW 1 when they made the reports at the police post.
10. PW 2 testified that Lorna was on the road when three men grabbed her phone and the same was recovered a day after the incident. She identified the appellant as the person who grabbed her phone and had a metal bar. PW 2 kept the metal bar, phone, T-shirt and mask as exhibits. The complainant told him that his stolen phone was worth KShs 15,000/= while Lorna said hers was worth KShs 13,000/=. He directed PW 1 to seek medical attention.
11. PW 3, Odhiambo Owino is a clinical officer at Kerugoya County Referral hospital. He attended to the PW 1 on 8th June 2020. He had been injured on 7th June 2020. He had tenderness and swelling on the head and nose, bruises on the neck and was unable to swallow. He also had pain in the right forearm. The injuries were assessed as soft tissue. PW 3 produced the treatment notes and P3 form completed at the hospital.
12. PW 4, Cpl Stella Mugo was the investigating officer in the case. She said that the recovered phone was taken to the police post by a high school student Mohammed Kamau and a friend of Lorna with whom they were together at the time of the incident. PW 4 said that Mohammed had said the phone was recovered from a different suspect who was not arrested.
13. At the close of the case for the prosecution, the second complainant had not testified. PW 2 and PW 4 explained in their evidence that she was working at Kutus but she had since relocated to Bungoma and she could not be traced. The learned trial magistrate found that a prima facie case had been established against the appellant, without expounding on whether it was on one or both counts.
14. The appellant gave sworn evidence in defence before a different magistrate as the initial one had proceeded on transfer. He did not call a witness. He denied that he committed the offence. He said he was coming from work of carrying timber at Kamugunda at night when he met people who attacked him and he lost consciousness. He said he never knew what happened and what he had done wrong.
15. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt on the first count. She dismissed the appellant’s defence and convicted him accordingly on the first count. She however, found no sufficient evidence to convict the appellant on the second count and acquitted him on the same.
16. In arriving at her decision, the learned trial magistrate found while agreeing with the appellant that no receipts were produced for the alleged stolen phones and that this was an omission on the part of the prosecution, “since no evidence was availed to prove ownership of the stolen phones and neither was PW 1 examined on the same.” The learned trial magistrate was however satisfied that the appellant was injured in the process of being robbed of his phone. She was satisfied further from the evidence on record of the blood-stained T-shirt and mask that PW 1 had been injured during the robbery.
17. The learned trial magistrate was satisfied that the appellant was positively identified by PW 1 because the incident happened at 5.30 p.m. and PW 1 launched a manhunt with other people and managed to arrest him shortly after the incident.
18. The learned trial magistrate remarked that the trial court had not been told why the second suspect who had been taken to the police post alongside the appellant was never charged or the outcome of investigations concerning him. She noted that the investigating officer, PW 4 never mentioned a second suspect in her evidence and in fact said that she was not aware if other people were arrested.
19. The learned trial magistrate also noted that the second complainant, Lorna Musyawa and the person who was said to have taken her alleged recovered phone to the police station were not made available to testify yet no efforts had been shown to trace them.
20. The learned trial magistrate basically identified several gaps in the prosecution’s case but all the same was satisfied that the case against the appellant had been proved beyond a reasonable doubt.
21. The appellant argued his appeal on three grounds merging grounds 1 and 2 then 3 and 4 then 5.
22. The appellant submits that according to the evidence on record, the offence took place at night under difficult circumstances. That the offence took place at night is not correct as there was no such evidence. Perhaps he was talking of his own testimony that he was arrested at night. That was not the prosecution evidence which was that the offence took place at 5.30 p.m. and PW 1 said that there was daylight by which he was able to see well.
23. The appellant submits that the complainant, PW 1 was not known to him and he only came to see him for the first time in court. The complainant, PW 1 also testified that the appellant was not known to him before. Therefore, the submission by the appellant is contrary to his ground No. 4 in the memorandum of appeal where he said that his plausible defence that the case was framed against him to curtail his success for envious reasons. How could somebody unknown to him be envious of his success?
24. The appellant submits that he is a victim of mistaken identity. He reiterates that whereas the complainant testified that he was attacked and robbed at 5.30 p.m., he was arrested at night and the intensity of lighting at the scene of his arrest was not given. He submits that the appellant could not have been hit and become unconscious yet again manage to chase the assailant and arrest him. Further that the prosecution did not state the distance between the scene of the crime and where he was arrested.
25. He also submits that the PW 1 did not give a description of how he managed to identify him as one of his assailants.
26. On grounds 3 and 4, the appellant submits that there was contradiction in the evidence of the complainant who said he was attacked by three people yet the investigating officer, PW 4 testified that the complainant was attacked by 4 people.
27. The appellant submits further that the trial court erred by rejecting his otherwise plausible defence which was not displaced by the prosecution.
28. The appellant submits further that the person who took the Infinix phone to the police station was not questioned on where he had recovered it from and there was no reason why he was not made available to testify in the case.
29. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court.
30. Learned counsel submits that all the ingredients of the offence of robbery with violence were proved against the appellant in that the appellant was a member of a gang of three men and he was armed with a metal bar which was used to hit the complainant. In support of this submission, he relied on the case of Johanna Ndungu vs. Republic, [1996] eKLR, where the court set out the ingredients of the offence.
31. Learned counsel for the respondent submits on the issue of contradictions in the prosecution evidence and therefore the witnesses being of doubtful integrity that it is nor every contradiction that warrants a rejection of the evidence. He has cited the case of MTG v Republic [2022] KEHC 189 (KLR) to support his submission.
32. The respondent submits that the PW 1 did not know the appellant before and therefore he had no reason to frame him as alleged by the appellant.
33. Learned counsel submits that the trial court considered both the prosecution and defence evidence, contrary to the appellant’s assertions that his defence was not considered.
34. On the issue of identification, learned counsel submits that the complainant identified the appellant as one of the three men who attacked him and the one who hit him with a metal bar. Learned counsel submits that as the complainant and other members of the public pursued the assailants, the gang was on a robbing spree and they had robbed the second complainant at which point the appellant was arrested. Learned counsel submits that an identification parade was not necessary as the complainant and his neigbours had already arrested the appellant.
35. Learned counsel submits that the element of theft was proved as there was evidence that the complainant’s mobile phone and KShs 100/= was stolen.
36. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent, and the judgment of the trial court. The issues upon which this appeal rests are 1) whether or not there was proper identification of the appellant as the robber and 2) whether, on the whole, the offence of robbery under section 296(2) was proved against the appellant beyond a reasonable doubt.
37. The appellant contends that the offence of robbery with violence was not proved against him beyond a reasonable doubt. We now need to consider the ingredients to ascertain whether the offence was proved and therefore whether the learned trial magistrate reached a proper finding.
38. Sections 295 and 296(2) of the Penal Code under which the appellant was charged were explained by the Court of Appeal in the case of Johana Ndungu v Republic [1996] eKLR as follows:
“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
If the offender is armed with any dangerous or offensive weapon or instrument, or
If he 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 violence to any person.
Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.
In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.
With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”
39. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2).
40. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] eKLR).
41. The present case is hinged on two elements of the offence, that the appellant was in company of two other people that is, they were more than one; second that they used violence upon the complainant because one of them whom the complainant identified as the appellant assaulted him with a metal bar. The existence of any one of these elements was sufficient to prove the offence against the appellant.
42. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly.
43. Although the learned trial magistrate dismissed the defence by the appellant as bearing no weight upon the prosecution’s case, I do not think that was correct. The appellant maintained that he was arrested at night. Whereas PW 1 said that the robbery occurred around 5.30 p.m. he never indicated the time when the appellant was arrested. PW 2, to whom the appellant was taken upon arrest also never indicated at what time he was taken to the police post. However, in the P3 form, it is indicated that the case was reported to the police station at 1930 Hours. The question becomes, if the incident happened at around 5.30 p.m. and according to the complainant, the appellant was arrested almost immediately, what took so long to reach the police post yet there is no indication that the police post was so far from the point of arrest?
44. Yet again, in the P3 form the section completed by the police indicates that the complainant was assaulted by a person known to him physically. Moreover, the medical personnel also indicated in the P3 form that the complainant alleged to have been assaulted by three people well known to him. The indication to PW 2 and PW 3 that the assailant(s) were well known to the complainant could only have come from him. How come later in court, he changed his evidence to say that they were not known to him? That is a material inconsistency in the evidence of PW 1, the main witness in the case, and cannot be wished away as per the respondent’s submission. Either the assailants were well known to PW 1 or they were not. That inconsistency was not resolved, and this creates a doubt in the prosecution’s case on whether the incident happened as alleged by PW 1 or if it did, whether the correct suspect was arrested.
45. On the arrest of the appellant, I agree with the appellant’s submissions that the complainant having fallen to the ground unconscious, it was difficult for him to get up immediately and start pursuing the assailants. It must have taken some time for him to regain his composure and talk to the people around, who he said told him they had seen the assailants and then pursue them. During that time, the assailants must have moved far. It is not practical that PW 1 had the appellant in view all through. It follows that the appellant was arrested away from the scene of the offence and therefore sometime later. That then lends credence to the appellant’s defence that he must have been arrested later at night and away from the scene of the offence.
46. PW 1 said that he had seen the man who hit him properly. He also said that he was relaxing, listening to music on his phone at the time. Naturally, his mind was attuned to the music and may not have been paying much attention to the people who were coming around and passing by. There is no evidence of how long he had the men under observation as they approached and how he was able to identify one and not the other two. The appellant did not provide any description of the man who hit him with the metal bar that would have enabled him to identify him at the time of arrest. PW 4, the investigating officer, said that a mob later arrested the person with a metal bar. She also said that Lorna was a complainant and identified the appellant in this case. Considering the prosecution''s evidence that there was a spate of robberies within that area, that Lorna was one of the victims, and that her phone was allegedly recovered from a different suspect who was not even arrested, there was no connection at all between Lorna’s incident, that of PW 1, and the appellant herein. PW 1 testified that the appellant was arrested where Lorna was. He did not see the appellant robbing Lorna of anything; to him, the arrest of the appellant was only because the appellant had a metal bar. Despite the investigating officer saying that Mohammed Kamau was a student and in school, he was never made available to testify on any connection between the alleged robbery against Lorna, the appellant and the recovery of Lorna’s phone from a different suspect.
47. PW 1 also testified that a neighbor had witnessed the incident. That neighbor was also not called as a witness and no reason was offered by the prosecution for that failure. Given that PW 1’s evidence was barely sufficient to prove the charge, such a crucial witness of identification needed to be made available to buttress PW 1’s evidence. In the case of Bukenya -vs- Uganda [1972] EA 549, the Court of Appeal held that failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution''s case, and acquit the accused person. I find herein that the failure to call these material witnesses weakened the prosecution’s case. The learned trial magistrate did not address herself to this important aspect of the prosecution’s evidence.
48. PW 1 also said that the appellant was arrested while with a metal bar where the second complainant, Lorna Musyawa was. Under those circumstances, I can only find that the only reason why the appellant was arrested was because he was found with a metal bar and that the complainant had been assaulted using a metal bar. That being the case, I find that there was a reasonable doubt that he was identified as the one who assaulted or even robbed the complainant.
49. From the foregoing analysis, it follows that the conviction of the appellant for the offence of robbery with violence on the first count could not have been safe. I therefore find that the learned trial magistrate was in error to convict the appellant as she did.
50. Consequently, the conviction of the appellant for the offence of robbery with violence under section 295 as read with section 296(2) of the Penal Code is quashed and the sentence of death is set aside and substituted with a decision acquitting the appellant of the charge. The appellant shall be set at liberty unless otherwise lawfully held.
51. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 8th day of September 2025 in the presence of:
The appellant in person from Nyeri prison.
Ms Komu prosecution counsel for the respondent
Job: Court assistant.
'
1. The appellant was charged with two counts of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 7th June 2020 at Kutus Mjini township in Mwea East Sub-County within Kirinyaga County, jointly with others not before court robbed the complainants hereinbelow:
i. Count I: Stephen Wachira Njiraini was robbed of a mobile phone make Samsung and cash KShs 100/= all valued at KShs 15,100/= and at or immediately before or immediately after the time of such robbery wounded the said Stephen Wachira Njiraini.
ii. Count II: Lorna Musyawa of a mobile phone make Infinix smart Two valued at KShs 13,000/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said Lorna Musyawa.
2. The appellant was acquitted on the second count for lack of evidence as the complainant Lorna Musyawa failed to attend court to testify. He was convicted on the first count and sentenced to suffer death. He was aggrieved by the conviction and sentence and preferred this appeal through his undated memorandum raising the following grounds:
i. the learned trial magistrate erred in law and fact by failing to appreciate the fact that the alleged victim clearly demonstrated an incredibly doubtful integrity and whose evidence remains doubtful.
ii. the learned trial magistrate erred both in law and fact by failing to appreciate that the critical elements of the offence of robbery with violence were not proved to the required standard in law.
iii. the learned trial magistrate erred in law and fact by failing to consider that the whole of the prosecution evidence was riddled with material discrepancies which were capable of unsettling the verdict.
iv. the learned trial magistrate failed to consider the appellant’s defence that was plausible and not contested or disproved by the prosecution demonstrating that the case was a frame-up for envious reasons to curtail the appellant’s success.
v. the instant matters proof was below the required standards of proof and therefore capable of impeaching the whole substance of the matter (sic).
3. The appellant therefore prays that the appeal be allowed in its entirety.
4. The appeal was disposed of by way of written submissions filed by the appellant and learned counsel for the respondent.
5. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
6. The prosecution called four witnesses to support its case.
7. PW 1, Stephen Wachira, the complainant in count 1 testified that on the evening of 7th May 2020 he was at his sister’s home when he decided to go to river Thiba, about 50 to 100 metres away to relax there. He was listening to music on his phone, Samsung Galaxy A105 and had KShs 100/= on the cover of the phone when three men appeared from a forest nearby next to Kirinyaga university. One of them grabbed his phone and when he offered resistance another one struggled with him and hit him on the forehead with a metal bar. He briefly lost consciousness. He testified that he had properly seen the man who hit him on the forehead with the metal bar. He testified that when he got up, a neighbor had witnessed the incident. Other people joined them and they launched a manhunt for the assailants. They arrested the man with the metal bar, the appellant herein and took him to Mjini police post where he also recorded his statement. He received treatment at Kerugoya County hospital (Exh. 1) and his P3 form (Exh. 2) was also completed there. He also produced a yellow T-shirt and mask that he was wearing at the time of the incident and both were blood stained. The metal bar (Exh. 4) which he also identified as the assault weapon was also produced in evidence.
8. In cross-examination PW 1 said that the second complaint Lorna Musiani was known to him but he did not see her during the incident and that she was where the appellant was arrested.
9. PW 2 PC Boniface Ributhi was working at Kutus police post at the time on 7th June 2020 when the appellant and another man were taken to the police post on allegations of having stolen phones. The complainant was one of the victims and he was injured on the head and his clothes and mask were stained with blood. The following day, 8th June 2020 an Infinix phone, said to be among those stolen the previous day, was taken to the police station by one Mohammed Kamau and it was said that the person who had it took off. The second complainant, Lorna Musyawa identified it as her phone. She had been with PW 1 when they made the reports at the police post.
10. PW 2 testified that Lorna was on the road when three men grabbed her phone and the same was recovered a day after the incident. She identified the appellant as the person who grabbed her phone and had a metal bar. PW 2 kept the metal bar, phone, T-shirt and mask as exhibits. The complainant told him that his stolen phone was worth KShs 15,000/= while Lorna said hers was worth KShs 13,000/=. He directed PW 1 to seek medical attention.
11. PW 3, Odhiambo Owino is a clinical officer at Kerugoya County Referral hospital. He attended to the PW 1 on 8th June 2020. He had been injured on 7th June 2020. He had tenderness and swelling on the head and nose, bruises on the neck and was unable to swallow. He also had pain in the right forearm. The injuries were assessed as soft tissue. PW 3 produced the treatment notes and P3 form completed at the hospital.
12. PW 4, Cpl Stella Mugo was the investigating officer in the case. She said that the recovered phone was taken to the police post by a high school student Mohammed Kamau and a friend of Lorna with whom they were together at the time of the incident. PW 4 said that Mohammed had said the phone was recovered from a different suspect who was not arrested.
13. At the close of the case for the prosecution, the second complainant had not testified. PW 2 and PW 4 explained in their evidence that she was working at Kutus but she had since relocated to Bungoma and she could not be traced. The learned trial magistrate found that a prima facie case had been established against the appellant, without expounding on whether it was on one or both counts.
14. The appellant gave sworn evidence in defence before a different magistrate as the initial one had proceeded on transfer. He did not call a witness. He denied that he committed the offence. He said he was coming from work of carrying timber at Kamugunda at night when he met people who attacked him and he lost consciousness. He said he never knew what happened and what he had done wrong.
15. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt on the first count. She dismissed the appellant’s defence and convicted him accordingly on the first count. She however, found no sufficient evidence to convict the appellant on the second count and acquitted him on the same.
16. In arriving at her decision, the learned trial magistrate found while agreeing with the appellant that no receipts were produced for the alleged stolen phones and that this was an omission on the part of the prosecution, “since no evidence was availed to prove ownership of the stolen phones and neither was PW 1 examined on the same.” The learned trial magistrate was however satisfied that the appellant was injured in the process of being robbed of his phone. She was satisfied further from the evidence on record of the blood-stained T-shirt and mask that PW 1 had been injured during the robbery.
17. The learned trial magistrate was satisfied that the appellant was positively identified by PW 1 because the incident happened at 5.30 p.m. and PW 1 launched a manhunt with other people and managed to arrest him shortly after the incident.
18. The learned trial magistrate remarked that the trial court had not been told why the second suspect who had been taken to the police post alongside the appellant was never charged or the outcome of investigations concerning him. She noted that the investigating officer, PW 4 never mentioned a second suspect in her evidence and in fact said that she was not aware if other people were arrested.
19. The learned trial magistrate also noted that the second complainant, Lorna Musyawa and the person who was said to have taken her alleged recovered phone to the police station were not made available to testify yet no efforts had been shown to trace them.
20. The learned trial magistrate basically identified several gaps in the prosecution’s case but all the same was satisfied that the case against the appellant had been proved beyond a reasonable doubt.
21. The appellant argued his appeal on three grounds merging grounds 1 and 2 then 3 and 4 then 5.
22. The appellant submits that according to the evidence on record, the offence took place at night under difficult circumstances. That the offence took place at night is not correct as there was no such evidence. Perhaps he was talking of his own testimony that he was arrested at night. That was not the prosecution evidence which was that the offence took place at 5.30 p.m. and PW 1 said that there was daylight by which he was able to see well.
23. The appellant submits that the complainant, PW 1 was not known to him and he only came to see him for the first time in court. The complainant, PW 1 also testified that the appellant was not known to him before. Therefore, the submission by the appellant is contrary to his ground No. 4 in the memorandum of appeal where he said that his plausible defence that the case was framed against him to curtail his success for envious reasons. How could somebody unknown to him be envious of his success?
24. The appellant submits that he is a victim of mistaken identity. He reiterates that whereas the complainant testified that he was attacked and robbed at 5.30 p.m., he was arrested at night and the intensity of lighting at the scene of his arrest was not given. He submits that the appellant could not have been hit and become unconscious yet again manage to chase the assailant and arrest him. Further that the prosecution did not state the distance between the scene of the crime and where he was arrested.
25. He also submits that the PW 1 did not give a description of how he managed to identify him as one of his assailants.
26. On grounds 3 and 4, the appellant submits that there was contradiction in the evidence of the complainant who said he was attacked by three people yet the investigating officer, PW 4 testified that the complainant was attacked by 4 people.
27. The appellant submits further that the trial court erred by rejecting his otherwise plausible defence which was not displaced by the prosecution.
28. The appellant submits further that the person who took the Infinix phone to the police station was not questioned on where he had recovered it from and there was no reason why he was not made available to testify in the case.
29. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellant by the trial court.
30. Learned counsel submits that all the ingredients of the offence of robbery with violence were proved against the appellant in that the appellant was a member of a gang of three men and he was armed with a metal bar which was used to hit the complainant. In support of this submission, he relied on the case of Johanna Ndungu vs. Republic, [1996] eKLR, where the court set out the ingredients of the offence.
31. Learned counsel for the respondent submits on the issue of contradictions in the prosecution evidence and therefore the witnesses being of doubtful integrity that it is nor every contradiction that warrants a rejection of the evidence. He has cited the case of MTG v Republic [2022] KEHC 189 (KLR) to support his submission.
32. The respondent submits that the PW 1 did not know the appellant before and therefore he had no reason to frame him as alleged by the appellant.
33. Learned counsel submits that the trial court considered both the prosecution and defence evidence, contrary to the appellant’s assertions that his defence was not considered.
34. On the issue of identification, learned counsel submits that the complainant identified the appellant as one of the three men who attacked him and the one who hit him with a metal bar. Learned counsel submits that as the complainant and other members of the public pursued the assailants, the gang was on a robbing spree and they had robbed the second complainant at which point the appellant was arrested. Learned counsel submits that an identification parade was not necessary as the complainant and his neigbours had already arrested the appellant.
35. Learned counsel submits that the element of theft was proved as there was evidence that the complainant’s mobile phone and KShs 100/= was stolen.
36. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent, and the judgment of the trial court. The issues upon which this appeal rests are 1) whether or not there was proper identification of the appellant as the robber and 2) whether, on the whole, the offence of robbery under section 296(2) was proved against the appellant beyond a reasonable doubt.
37. The appellant contends that the offence of robbery with violence was not proved against him beyond a reasonable doubt. We now need to consider the ingredients to ascertain whether the offence was proved and therefore whether the learned trial magistrate reached a proper finding.
38. Sections 295 and 296(2) of the Penal Code under which the appellant was charged were explained by the Court of Appeal in the case of Johana Ndungu v Republic [1996] eKLR as follows:
“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
If the offender is armed with any dangerous or offensive weapon or instrument, or
If he 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 violence to any person.
Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.
In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.
With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”
39. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2).
40. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] eKLR).
41. The present case is hinged on two elements of the offence, that the appellant was in company of two other people that is, they were more than one; second that they used violence upon the complainant because one of them whom the complainant identified as the appellant assaulted him with a metal bar. The existence of any one of these elements was sufficient to prove the offence against the appellant.
42. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly.
43. Although the learned trial magistrate dismissed the defence by the appellant as bearing no weight upon the prosecution’s case, I do not think that was correct. The appellant maintained that he was arrested at night. Whereas PW 1 said that the robbery occurred around 5.30 p.m. he never indicated the time when the appellant was arrested. PW 2, to whom the appellant was taken upon arrest also never indicated at what time he was taken to the police post. However, in the P3 form, it is indicated that the case was reported to the police station at 1930 Hours. The question becomes, if the incident happened at around 5.30 p.m. and according to the complainant, the appellant was arrested almost immediately, what took so long to reach the police post yet there is no indication that the police post was so far from the point of arrest?
44. Yet again, in the P3 form the section completed by the police indicates that the complainant was assaulted by a person known to him physically. Moreover, the medical personnel also indicated in the P3 form that the complainant alleged to have been assaulted by three people well known to him. The indication to PW 2 and PW 3 that the assailant(s) were well known to the complainant could only have come from him. How come later in court, he changed his evidence to say that they were not known to him? That is a material inconsistency in the evidence of PW 1, the main witness in the case, and cannot be wished away as per the respondent’s submission. Either the assailants were well known to PW 1 or they were not. That inconsistency was not resolved, and this creates a doubt in the prosecution’s case on whether the incident happened as alleged by PW 1 or if it did, whether the correct suspect was arrested.
45. On the arrest of the appellant, I agree with the appellant’s submissions that the complainant having fallen to the ground unconscious, it was difficult for him to get up immediately and start pursuing the assailants. It must have taken some time for him to regain his composure and talk to the people around, who he said told him they had seen the assailants and then pursue them. During that time, the assailants must have moved far. It is not practical that PW 1 had the appellant in view all through. It follows that the appellant was arrested away from the scene of the offence and therefore sometime later. That then lends credence to the appellant’s defence that he must have been arrested later at night and away from the scene of the offence.
46. PW 1 said that he had seen the man who hit him properly. He also said that he was relaxing, listening to music on his phone at the time. Naturally, his mind was attuned to the music and may not have been paying much attention to the people who were coming around and passing by. There is no evidence of how long he had the men under observation as they approached and how he was able to identify one and not the other two. The appellant did not provide any description of the man who hit him with the metal bar that would have enabled him to identify him at the time of arrest. PW 4, the investigating officer, said that a mob later arrested the person with a metal bar. She also said that Lorna was a complainant and identified the appellant in this case. Considering the prosecution''s evidence that there was a spate of robberies within that area, that Lorna was one of the victims, and that her phone was allegedly recovered from a different suspect who was not even arrested, there was no connection at all between Lorna’s incident, that of PW 1, and the appellant herein. PW 1 testified that the appellant was arrested where Lorna was. He did not see the appellant robbing Lorna of anything; to him, the arrest of the appellant was only because the appellant had a metal bar. Despite the investigating officer saying that Mohammed Kamau was a student and in school, he was never made available to testify on any connection between the alleged robbery against Lorna, the appellant and the recovery of Lorna’s phone from a different suspect.
47. PW 1 also testified that a neighbor had witnessed the incident. That neighbor was also not called as a witness and no reason was offered by the prosecution for that failure. Given that PW 1’s evidence was barely sufficient to prove the charge, such a crucial witness of identification needed to be made available to buttress PW 1’s evidence. In the case of Bukenya -vs- Uganda [1972] EA 549, the Court of Appeal held that failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution''s case, and acquit the accused person. I find herein that the failure to call these material witnesses weakened the prosecution’s case. The learned trial magistrate did not address herself to this important aspect of the prosecution’s evidence.
48. PW 1 also said that the appellant was arrested while with a metal bar where the second complainant, Lorna Musyawa was. Under those circumstances, I can only find that the only reason why the appellant was arrested was because he was found with a metal bar and that the complainant had been assaulted using a metal bar. That being the case, I find that there was a reasonable doubt that he was identified as the one who assaulted or even robbed the complainant.
49. From the foregoing analysis, it follows that the conviction of the appellant for the offence of robbery with violence on the first count could not have been safe. I therefore find that the learned trial magistrate was in error to convict the appellant as she did.
50. Consequently, the conviction of the appellant for the offence of robbery with violence under section 295 as read with section 296(2) of the Penal Code is quashed and the sentence of death is set aside and substituted with a decision acquitting the appellant of the charge. The appellant shall be set at liberty unless otherwise lawfully held.
51. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 8th day of September 2025 in the presence of:
The appellant in person from Nyeri prison.
Ms Komu prosecution counsel for the respondent
Job: Court assistant.
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