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JudgmentJACKSON KENGA KOMBE VS The Republic20 min read

JACKSON KENGA KOMBE VS The Republic

High Court at Malindi High Court · · M Thande



  1. The Appellants herein and 2 other persons were charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence are that on 20.1.18 at Mahenzo Wholesalers, at Sosoni Shopping Centre, Bungale location, in Magarini sub county within Kilifi county, jointly with others not before court, while armed with an AK47 robbed David Graham Thoya of Kshs. 300,000/= and at the time of such robbery used actual violence on him thereby killing him. Following trial, the Appellants were convicted of the offence and subsequently sentenced to 25 years imprisonment each.
  2. Being aggrieved, each of the Appellants separately filed appeals challenging their conviction. The Appeals were consolidated by an order of the Court dated 7.3.24.
  3. Criminal Appeal No. E057 of 2023 was filed by Jackson Kenga Kombe. His summarized amended grounds of appeal are that the trial court erred in both law and fact for:
  4. shifting the burden of proof to the Appellant.
  5. failing to appreciate that the case was poorly investigated and that there were contradictions and inconsistency and lack of corroboration in the prosecution evidence
  6. failing to appreciate the Appellant’s defence.
  7. failing to consider that there was no identification parade.
  8. convicting the Appellant on a defective charge sheet.
  9. Criminal Appeal No. E059 of 2023 was filed by Robert Nyamai Kilonzo. His summarized amended grounds are that the trial court erred in both law and fact for:
    1. shifting the burden of proof to the Appellant.
    2. failing to appreciate that the case was poorly investigated and that there were contradictions and inconsistency and lack exhibits and corroboration in the prosecution evidence.
    3. failing to consider that there was no identification parade.
    4. convicting the Appellant on a defective charge sheet.
    5. failing to consider the Appellant’s defence.
  10. Criminal Appeal No. E088 of 2023 was filed by Nelson Koi Thethe. His summarized amended grounds are that the trial court erred in both law and fact for:
    1. shifting the burden of proof to the Appellant.
    2. failing to appreciate that the case was fabricated and poorly investigated.
    3. failing to find that there were contradictions and inconsistency and lack exhibits and corroboration in the prosecution evidence.
    4. failing to appreciate the Appellant’s alibi defence.
  11. Criminal Appeal No. E089 of 2023 was filed by Nassir Athman. His summarized amended grounds are that the trial court erred in both law and fact for:
    1. failing to find that the case was not proved beyond reasonable doubt.
    2. failing to appreciate that the case was fabricated and poorly investigated.
    3. failing to find that there were contradictions and inconsistencies and lack of corroboration in the prosecution evidence.
    4. convicting the Appellant on mistaken identity.
  12. As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).

  1. The evidence before the trial court was as adduced by 10 witnesses.
  2. PW1 Ronaldo Maitha Thoya, stated that he is the owner of Sosodo shop where the alleged offence occurred. He reported there at 7 am on the material date but left at 11am to get charcoal from the forest. He left his brother his brother David Thoya Maitha, Big D, a casual employee (2nd accused) and his cousin Baya at the shop. At 8pm, he received a call from Robert (2nd Appellant), who told him that David had been killed by thugs at the shop. He arrived at the shop at 1am and found David’s body there and he had been shot.  PW1 went on to state that Katana, a driver informed him that the 2nd Appellant had come to the shop and wanted to take an item. He then left. Thereafter, thugs arrived and ordered them to produce money. He lost Kshs. 6,000/= which was for his business.
  3. PW1 further testified that he saw the 2nd Appellant but did not talk to him. He stated that he had a grudge against the 2nd Appellant as he had given him Kshs. 160,000/= to buy beans from Mombasa and bring to Sosoni but that when he got there, he said the money was not enough and PW1 sent him another Kshs. 30,000/=.  After the 2nd Appellant bought the beans, PW1 dismissed him as a driver and they parted ways.  In cross examination, he stated that Big D had the keys to the shop and opens and locked the same but was not allowed to enter the counter. David (the deceased) slept at the shop.
  4. PW2 Wanje Marsha Ngowa stated that he works for PW1 as a driver. On the night of 10.12.18, he went to the shop and found Big D, Baya and the deceased inside the shop. At 7.45pm, the 2nd Appellant went to the shop and found Pw2 and the others talking. He responded to PW2’s greetings, went to the counter and took one date from a box and then left the shop. After 20 minutes PW2 heard a gunshot and ran out of the shop to find out what was happening. A man ran into the shop and ordered them to lie down. PW2 ran to the shelf to hide and heard the deceased crying for help. A man then ordered him to give him money. He climbed down from the counter and as he was fleeing, he heard 3 gunshots and was hit on the leg. He fell down facing the shop door. The 4th Appellant had an AK47 was dress in a police jungle uniform. After the assailants left, he limped to the shop and was taken to Sosoni dispensary and an ambulance took him to Malindi Hospital where he was admitted for a week. The police recorded his statement while in hospital. He told them he did not know the assailants as he feared for his life. He said the same to his relatives. A month later when he felt better, he decided to tell the truth and recorded a statement in which he stated he had seen the 4th Appellant. 
  5. PW3 Kasena Kahindi Thoya testified that on the material day at 6.30pm, he was at Wakale in Majengo buying petrol for his boda boda where he met Charo (4th accused), Kenga (6th accused) and Nassir (4th Appellant). They were standing by a motorcycle belonging to the 3rd Appellant but he was not there. The 4th Appellant was holding ½ a litre of petrol. He saw the 4th Appellant riding the motorcycle. When PW3 got home, his wife told him that some thugs had killed a man called Furaha at Sosoni. The following morning at 6am, PW3 went towards the shop where people had gathered in groups saying a man had been killed.  Bibi ya Pius, a shopkeeper told him that Furaha had been killed. At petrol shop, the owner of the petrol pump told me the motorcycle I had seen there the previous day had been used in the robbery. He then proceeded towards Baricho to take ferry his customer and saw the motorcycle parked by the side of the road. He saw the 3rd Appellant looking at the motorcycle.
  6. PW3 returned later and joined other motorcyclists who were headed to home of the 3rd Appellant in Bone. They questioned him about the whereabouts of his motorcycle and he said he had given it to Kitsao.  Both the 3rd Appellant and Kitsao were then taken to the scene of the alleged crime. While there, the crowd then turned on 3rd accused who then named the 4th and 5th accused as the persons who had taken the motorcycle. There was fracas and KWS arrived and had to shoot in the air to disperse the crowd. Thereafter PW3 recorded his statement.   Later he was arrested on the charges of arson.
  7. PW4 Salama Patrick Jeff told the court that she runs a club and that on the material day the 4th accused and the 4th Appellant had been at her club where she served them and then they left at 6.00pm. She stated that they had gone to the club on a new black motor cycle.
  8. PW5 Alex Nyondo Iha a motor cycle mechanic, told the court that at around 6:00pm he was at PW4’s bar when the 4th Appellant in the company of 2 other people walked into the bar. Later that night while at home, he heard gunshots and would later find out that the deceased had been shot dead.
  9. PW6 Herman Baya told the court that on the material day, he was at Sossoni at about 8:00pm at the shop with the deceased when the 2nd Appellant entered the shop, asked David for a cigarette then left. 20 minutes later, 2 people one of who was the 4th Appellant, entered the shop and asked them to lie down. Together with one Katana, they went to the backroom where 1 of the men followed them while the one holding the gun remained with the deceased. The 4th Appellant then took charge and started hitting them with the gun. PW6 then heard the deceased scream and run out of the shop. He also ran and hid in the bushes. When he came out of hiding, he saw the deceased lying on the ground dead while Katana was injured on the leg. He identified the 4th Appellant who was known to him.
  10. PW7 Sifa Lazarus Maitha a brother to PW1’s brother told the court that on 20.01.18, he got a call from the 2nd Appellant who informed him that there had been gunshots and that Katana had been injured while the deceased had been killed. He and PW1 went to the shop and found the deceased on the ground dead but Katana was not there. Money had also been stolen.
  11. PW8 Kitsao Katawa a boda boda operator told the court that he had used the 1st Appellant’s motorcycle for work on the day of the robbery and returned it to him at 2:00pm. On 20.01.18, he had seen the 2nd accused, the 3rd and 4th Appellants fuel a motorcycle but it was not the same he had hired.
  12. PW9 Boaz Ogeto a retired DCIO testified that on 20.01.18 a report was made that there had been a shooting at Sosoni at around 8:00pm where one man had been injured and another killed. He began his investigations and the next day he learnt that motorcycle registration number KMEF 104 had been surrendered to Baricho AP Camp. He also found that PW8 and the 1st Appellant had been arrested and surrendered to the police. He told the court that he established that the 2nd Appellant had previously been employed by PW1 and the deceased. He was however sacked and he left Sosoni area only to return a day before the robbery. On the day of robbery, he went to the shop and bought nothing but picked a few dates and left. A few minutes later the shop was robbed. Additionally, that the 2nd accused, an employee at the shop, left the shop a few minutes before the robbery and could not account for his time and place at the time of the robbery. Further, that the 4th accused and the 4th Appellant were identified as the ones who had entered the shop.
  13. PW10 Dr. Sadia Swaleh produced a post mortem report for the deceased. The findings were that the deceased had sustained three gunshot wounds with the first bullet penetrating the heart and lungs. The cause of death was excessive bleeding.
  14. PW11 Ziro Wanje Mwaringa testified that on 20.01.18 he met the 2nd Appellant on his way to the shop. He asked the 2nd Appellant whether he could get airtime and he confirmed its availability. He told the court that while he was in the shop, the 4th Appellant stormed into the shop and ordered them to lie down which he obliged. After a short while he heard gunshots. He added that he also saw the 4th accused and another robber armed with a gun.
  15. The Appellants filed their submissions which I have duly considered. The Respondent chose not submit on the Appeals and relied on the Court to evaluate the evidence. 
  16. As indicated earlier, these Appeals arise from the same judgment. As such and inevitably, the issues arising from the Appeals are cross-cutting. For the sake of brevity and in order to avoid repetition, the submissions shall be considered together after setting out the issues for determination which are:
    1. Whether the charge sheet was defective.
    2. Whether the trial court shifted the burden of proof to the Appellants.
    3. Whether there were inconsistencies and contradictions in the prosecution evidence.
    4. Whether the Appellants were positively identified.
  17. I shall now proceed to consider and determine each of the issues.

Whether the charge sheet was defective

  1. The 1st and 2nd Appellants faulted the trial court for convicting them on a defective charge sheet. They however did not submit on the same. This ground therefore appears to have been abandoned.

Whether the trial court shifted the burden of proof to the Appellants

  1. The issues whether burden of proof was shifted to the Appellants and whether there were inconsistencies and contradictions in the prosecution evidence will be considered together due to their conceptual similarities.
  2. The 1st Appellant submitted that because the prosecution case is that some witnesses had seen him with the robbers the day before the incident, it would be unjust and unfair to link him to the robbery and convict him of the same. Further that none of the witnesses said that they saw him at the scene. He contended that it was the duty of the prosecution to show that the offence was committed and demonstrate that he committed the same.
  3. The 2nd Appellant submitted that while eye witnesses had identified the persons who robbed and killed the deceased in his shop, he was not one of them. The 2nd Appellant’s case is that while he visited the shop, he was not there when the incident occurred. Further that he only called PW7 to confirm the reason behind the gunshots. His case therefore, is that none of the witnesses mentioned him or linked him to the offence. As such, the prosecution did not discharge the burden of proof against him, beyond reasonable doubt.
  4. On his part, the 3rd Appellant submitted that he was connected to the offence merely on circumstantial evidence. He contended that the witnesses stated that they only saw his motorbike ferrying the robbers. He submitted that he does not own the motorbike used, nor was he the rider. Further that he rented his motorbike to any available customer and cannot be said to have committed an offence if the same was used by robbers. He cannot therefore be liable for the offence that was committed.
  5. Submitting on the same issue, the 4th Appellant contended that while PW2 testified that he was at the scene at the time of commission of the offence he did not however explain the 4th Appellant’s role in committing the offence. Further that PW2 stated that the 4th Appellant was spotted with others on a motorbike at a petrol station but did not explain how this linked him to the robbery in the shop. The 4th Appellant submitted that the testimony of PW2 was unreliable and questionable and that he recorded 2 different statements at the police station which were different from his testimony in court. He contended that the prosecution did not prove its case against him beyond reasonable doubt.
  6. It is quite clear that the Appellants’ contention under these twins issues is that the prosecution did not prove its case to the required standard.
  7. It is trite law that he who alleges must prove. The Evidence Act is very clear in this regard. Section 107 stipulates:
  8. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
  9. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Section 108 provides:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Section 109 provides:

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

  1. In criminal cases, the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt. This is basic to our law. The Court of Appeal in Omar Mzungu Chimera vs Repubic, Criminal Appeal No. 56 of 1998, at P. 5 through P. 6 stated that:

“It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:

(i)  the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;

(ii)  those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii)  the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else”

“…. circumstantial evidence in order to sustain a conviction (must be complete and incapable of) explanation on any other hypothesis than that of the guilt of the accused. Circumstantial evidence which falls short of the required standard on all material particulars cannot in law form a basis for a conviction.”

  1. The offence of with which the Appellants were charged and convicted is robbery with violence contrary to Section 295 of the Penal Code which provides: 

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

  1. The punishment for the offence of robbery with violence is stipulated in Section 296(2) of the Penal Code as follows:

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.

  1. The ingredients of the offence of robbery with violence were set out 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:

  1. If  the offender is armed with any dangerous or offensive weapon or instrument, or
  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 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.

  1. The 3 ingredients of the offence of robbery with violence are they are to be read not conjunctively, but disjunctively. As such, 1 element is sufficient to constitute the offence of robbery with violence. (see Dima Denge Dima & Others v Republic [2013] eKLR)
  2. The Appellants have not challenged the evidence that a robbery occurred at Sosodo shop and in the process, the deceased met his demise, having been shot. 
  3. What this Court must now determine is whether the evidence produced by the prosecution in the trial court was sufficient to sustain a conviction against all 4 Appellants.
  4. The eyewitnesses to the incident were PW2, PW6 and PW11who were at the shop when the incident occurred. PW2 told the trial court that while seated at the shop on the material day talking to the deceased, the 2nd Appellant came in at around 7.45 pm. He then went to the counter, took a date and left the shop. 20 minutes later, PW2 heard a gunshot and went out to check what was happening. He saw a man running into the shop ordering them to lie down. A man then pointed at him and ordered him to produce money. He went to the main door and fled. He heard 3 gunshots and was hit on the leg and fell facing the shop door. He saw a man in police jungle uniform holding an AK47 gun. He saw his face and recognized him as the 4th accused.
  5. On his part, PW6 stated that on the material night he was at the shop at about 8 pm with the deceased and Katana, when the 2nd Appellant entered the shop. He spoke with the deceased and asked for a cigarette. He then left the shop. About 20 minutes later the 4th Appellant (the 5th accused) entered the shop accompanied by a short man holding a gun. The short man ordered them to lie down. He and Katana went to the back room and the 4th Appellant followed them there. The deceased remained in the shop with the short man. PW6 then heard the deceased screaming and running out of the shop. The short man followed him and PW6 heard gunshots. PW6 went out and hid in the bushes. Later he saw the deceased lying down dead. Katana was injured in the leg. He stated that when the 2nd Appellant left the shop, he did not return. From the testimony of PW6, it is clear that the 4th Appellant was in the company of the short man who shot the deceased and Katana.  While PW6 identified the 4th Appellant who was the 5th accused in the trial court, he did not identify the short man.
  6. PW11’s testimony is that he was at the shop when the 4th Appellant cane in shouting to them to lie down. After a while he heard a gunshot and then another. He asked the 2nd Appellant whether he could get airtime and he confirmed its availability. He told the court that while he was in the shop, the 4th Appellant stormed into the shop in the company of another man and ordered them to lie down. After a short while he heard gunshots and he fled.
  7. The evidence on record shows that while the 2nd Appellant was in the shop 20 minutes before the incident, he was not seen there during the incident. As for the 1st Appellant, he was not placed at the scene of the robbery but his motorcycle is said to have been hired by the 4th accused and 4th Appellant.
  8. I have evaluated the evidence and my view is that there is really nothing to connect the 1st, 2nd and 3rd Appellants with the offence. The evidence against the was based on mere suspicion.  The circumstantial evidence linking the 1st, 2nd and 3rd Appellants to the offence is too remote to sustain a conviction. In this regard, I am guided by the holding in Joan Chebichii Sawe v Republic [2003] eKLR where the court of Appeal stated:

The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt.

Whether the Appellants were positively identified

  1. As regards identification of the Appellants, the eyewitnesses stated there was sufficient light from a solar light which is very bright. The evidence shows that amongst the Appellants, it is only the 4th Appellant who was positively identified at the scene. He walked into the shop with the short man with the gun who was identified by PW2 as the 4th accused in the trial court. The record shows that the 4th accused was discharged. 
  2. The upshot is that the appeals of the 1st Appellant Jackson Kenga Kombe, the 2nd Appellant Robert Nyamai Kilonzo and the 3rd Appellant Nelson Koi Thethe are allowed. Their conviction is quashed and the sentence set aside. They are set at liberty unless otherwise lawfully held. As for the 4th Appellant Nassir Athman, his appeal fails. Both the conviction and sentence are upheld.

DATED SIGNED and DELIVERED in MALINDI this 14th day of February 2025

 

    JACKSON KENGA KOMBE VS The Republic JACKSON KENGA KOMBE VS The Republic