1. This is an appeal from the conviction and sentence meted out by the Hon. P.N. Maina (Chief Magistrate) in Murang’a CMCCRC No. E121 of 2023 on 14.3.2024.
2. The Appellant was charged jointly with Francis Thiongo Mwangi with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0230hrs at Mukuyu Market in Murang’a East sub county of Murang’a County, the duo, while armed with a dangerous weapon namely knife robbed Risper Nkirote Mugambi of mobile phone make Neon Ray valued at Ksh. 4,500/= and immediately before the time of such robbery used actual violence to the said Risper Nkirote Mugambi.
3. The Appellant was also charged in Count II with attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0300hrs along Kahuro-Mukuyu road in Maragi location of Murang’a County, the duo, while armed with a dangerous weapon namely knife attempted to rob Godfrey Kinoti Gitonga and at the time of such attempt used actual violence to the said Godfrey Kinoti Gitonga.
4. There was also count III where the Appellant was charged with attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0300hrs along Kahuro-Mukuyu road in Maragi location of Murang’a County, the duo, while armed with a dangerous weapon namely knife attempted to rob Faith Kwamboka Mbaka and at the time of such attempt used actual violence to the said Faith Kwamboka Mbaka.
5. The Appellant was arraigned in court on 13.2.2023 where he pleaded not guilty. The court heard the matter and found the Appellant guilty and convicted him on all the 3 counts on 14.2.2023. The court sentenced him to serve death penalty in count II and held the sentence in count I and II in abeyance.
6. The Appellant filed a petition of appeal dated 16.4.2024 setting out the following grounds of appeal:
a) That the trial court erred in both law and in fact in convicting the appellant when the Respondent failed to describe clearly the alleged perpetrators of the offence.
b) The trial court erred in both law and in fact in relying on poor identification at night, violating Turnbull guidelines.
c) The trial court erred in law and in fact in failing to find that the mode of arrest had no connection with commitment of the offences.
d) The trial court erred in law and in fact in failing to find that the prosecution evidence was marred with contradictions, inconsistencies and discrepancies.
e) The trial court erred in law and in fact in failing to analyse submissions and defence of the Appellant and shifting the burden of proof.
f) That the trial court erred in law and in fact in meting out a maximum mandatory harsh sentence of death which was manifestly excessive as per the circumstances of this case.
Evidence and Proceedings
7. PW1 was Risper Nkirote Mugambi. She was a student at Kiharu Technical College. According to her, on 11.2.2023, there was a freshers’ night in college and she was heading out to go to her hostel at 2.30 am. She was in the company of Franklin Gikunda. About 200m from the college gate, they saw a motorbike approaching and on reaching them it stopped. It was motorcycle registration No. KMFL 392Q.
8. She testified that there were security lights from the college compound that lit the area and the motorcycle’s light was on, which supplemented this. She was thus able to see 3 men on the motorcycle that had now stopped. 2 of the three men alighted and approached her with Francklin. They offered to carry Risper and Franklin, who declined. One man pursued PW1 while the other pursued Franklin. Franklin managed to escape and the man pursuing him followed chasing him. The man pursuing PW1 manhandled her and was joined by the man who had pursued Franklin shortly after. The duo ransacked her pockets and got her mobile phone which they took away. She was left on the ground and the duo fled. Franklin later arrived with the school dean and assisted her to go back to the college. The matter was reported the next morning to the police station.
9. On cross examination, PW1 testified that she saw the assailants clearly. The scene was well lit by security light. Franklin was dressed in flowered shirt and had no jacket.
10. PW2 was Franklin Gikunda Mugungo. He was with PW1 at the time of the robbery with violence. He managed to escape. With PW1, he was at outside the college gate. The men approached on a motorbike and stopped. He heard the men demand them to hand over phones. He saw 4 men. Francis Thiong’o is the one who pursued him. On return to the scene, he found PW1 down and the assailants had escaped.
11. On cross-examination, PW2 testified that the motorcycle rider had covered his face and, therefore, he was unable to identify him. He further stated that the motorcycle involved was red in colour.
12. PW3 was Dennis Kari Mukanyi. He lived in Mukuyu area and supplied bread from the depot using his motorcycle registration number KMFL 392Q Make Captain red in colour. The Appellant was one of the riders who supplied bread. He would use the motorcycle also as bodaboda at an agreed daily rate of Ksh. 300/=. On 10.2.2023, he had gone to Maragua Ridge and left the motorcycle with the Appellant. That night around 4.30 am, a friend known as Duncan called him and informed him his motorbike was about to be burned down near Kiharu Technical College as the person he had given had used it to rob people of their phones.
13. He got up and rushed to the scene. He saw the motorbike and the Appellant emerged from the place he had hidden. His motorcycle was hidden and he noted that it had no fuel. He fueled it and took it to the police station. On cross examination, he did not know who hid the motorbike. The Appellant had hidden on the opposite side. The Appellant led police to the house of the Francis Thiongo who was arrested in connection with the offence.
14. PW4 was Michael Oduor Omondi, a lecturer and Dean of Students at Kiharu Technical College. He testified that on 11.02.2023 at about 2.30 a.m., he was at the college attending a Fresher's Night event, which required his presence. He heard screams and, together with others, rushed to the scene. Upon arrival, he saw one Franklin running towards the gate and observed PW1 lying on the ground at some distance away, screaming. He was informed that the men who had robbed the students had already fled. The matter was subsequently reported to Murang'a Police Station. He further stated that other students, namely Gitonga and Faith, had also been attacked by the same men who were riding the same motorcycle.
15. On cross-examination, PW4 testified that he saw the assailants and that they attempted to stop him. However, he stated that he did not know them and was therefore unable to identify them.
16. PW5 was Godfrey Gitonga. He knew the Appellant though they were not related. On 11.2.2023 at 3.00 am, he was headed home from Kiharu Technical College. He was with Faith Kwamboka. Reaching Maragi Secondary school area, a motorcycle approached them. Its registration number was KMFL 392Q. Those on board alighted. They approached him and asked for a phone. They were 4 men. One was armed with a knife. He placed on Faith demanding her phone. They attacked.
17. He managed to snatch the knife and throw it away. He was cut on the left arm. He recognized the Appellant. He had earlier carried him on the motorcycle. The Appellant then fled. He pursued the Appellant. The other 3 men followed him throwing stones. He hid in a bush. He later went back to check Faith. The attackers fled on the motorcycle.
18. On cross-examination, the witness stated that he clearly identified the Appellant as the motorcycle rider. He further testified that he arrested the Appellant, but the Appellant escaped and fled.
19. PW6 was Faith Kwamboka Mbaka. She was a student at Kiharu Technical College. On 11.2.2023, she was in the company of PW5. She was heading to her hostels. A motorcycle approached from behind. It was 0300 hours. The motorcycle parked at Maragi Secondary. She saw the registration number. It was KMFL 392Q. 4 men alighted and demanded them to stop. They did not. One man drew a knife and a phone. PW5 took her phone and kept with him. PW5 recognized one man who fled. The other 3 men followed throwing stones at PW5. The man who ransacked her had wrapped his head with a shuka. She did not identify the attackers. On cross examination, she stated that she read the number plate as the motorcycle drove past them before stopping.
20. PW7 was No. 256351, Jacob Mutua from DCI Murang’a. He was the investigating officer. On 11.2.2023 at 7.00 am, PW3 came to the station reporting that his motorcycle was used in a crime in robbing people. He had given it to the Appellant. Some students had been robbed. PW3 led him to the Appellant’s house. He was assisted by PC Thumbi. The Appellant gave a phone he had stolen. It was Zte Mobile phone. They had not managed to trace the owner.
21. The Appellant then led them to the house of Francis Thiongo and they found him sleeping. He woke up. He said that the phones they had stolen were with one of them. He offered to take them to the other suspect. They did not find him. They were told he was at a construction site. They headed there. On arrival, he escaped and has not been found. There was no need for identification parade as PW3 recognized the attackers. PW1 also identified the Appellant.
22. On cross examination, he testified that the Appellant left his ID Card with PW3 when he took the motorcycle for bodaboda use. The motorcycle was in his custody during the robbery. They did not recover anything from Francis Thiongo.
23. PW8 was Lawrence Wanduru Njoroge. He was a clinical officer at Murang’a Referral hospital. He filed P3 Form for PW1. On examination, she had tenderness and bruises on her left knee consistent with assault. The degree was harm and the weapon used was crude. On cross examination, the injury was caused by a hard surface consistent with a hit or fall.
24. At the close of the prosecution's case, the Appellant was placed on his defence, the court having found that a prima facie case had been established against him. The provisions of section 211 of the Criminal Procedure Code were duly complied with. The Appellant elected to give sworn testimony and was accordingly cross-examined by the prosecution.
25. DW1 was the Appellant. He testified that he was 23 years old. He recalled that on 11.02.2023, he had been hired to do some work in Sagana where he grafted 1,000 trees. At about 6.00 p.m., he travelled to Murang'a and arrived at Mukuyu at around 7.00 p.m. While at Mukuyu, he met one Francis Thiongo, who informed him that he wished to purchase a mobile phone. The Appellant told Francis that he had a phone which he was selling for Kshs.1,500/=. They agreed to meet the following morning to discuss the sale. On the following day he was awakened by a knock on his door. Upon opening, he found police officers in the company of PW3. He was then arrested.
26. On cross-examination, he maintained that on the night of 11.02.2023 he had been asleep in his house. He also admitted that he had previously worked for PW3 using the motorcycle in question. However, he did not use the same on the material date.
27. DW2 was Francis Thiongo. He was a bodaboda rider. The police told him to give them the phone he had bought from the Appellant. The Appellant had not even shown them the phone he wanted to sell to him. The phone was recovered from the Appellant. On cross examination, he was home asleep on the night of the alleged offences.
Submissions
28. The Appellant filed submissions dated 19.11.2025 by which it was submitted that he was convicted without clear evidence on identification and recognition. That the alleged source of light was not proved to be sufficient to identify the Appellant. Reliance was placed on the case of Teresia Nduta v Republic (2016) eKLR . It was also submitted that the Appellant was not identified at the scene of crime and he was home at the time of the alleged offence.
29. On sentence, it was submitted that the sentence was mandatory maximum and was unconstitutional as it breeched his rights to fair hearing under Article 50(2) of the Constitution. He was a first offender, remorseful and suitable for rehabilitation. He also cited Article 26 of the Constitution.
30. I have not had sight of the Respondent’s submissions.
Analysis
31. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
32. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36 , the former East Africa Court of Appeal stated on the duty of the court on a first appeal as follows:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
33. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
34. Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970 }, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
35. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
36. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
37. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
38. In criminal cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR) , expressed himself as hereunder:
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
39. Reasonable doubt needs not reach certainty, but it must carry a high degree of probability. In the case of Moses Nato Raphael v Republic [2015] KECA 787 (KLR) , the court of appeal[ Githinji, Karanja & Mwilu, JJ.A] held as follows:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
1. PW1 stated that she saw the Appellant. There was security light. The Appellant was wearing a flowery shirt. He wrestled PW1 and was accompanied by Francis Thiongo when they manhandled her, ransacked her and having thrown her to the ground snatched her phone. PW3 stated that his motorcycle in question was given to the Appellant who had it on the material early morning. However, this is not borne out of evidence.
2. At least one element of his defence was proved, that he was sleeping. What he was doing the previous day is irrelevant. He was sleeping when the police and PW3 came to his house. Nothing placed him on the subject motor vehicle. One witness indicated, and rightly so, that the rider covered his face. If the rider covered his face, what magic did the rest use to see him. Some pointed out that the appellant was not the rider but one of the participants. Others placed him as a rider.
3. PW4 was categorical that he was unable to identify the assailant. This is crucial since the PW4, saw the assailants but did not identify them. What hindered him from identifying the assailants, lights? The witness could be said a neutral one. He was not injured in the process. Other than responsibility, he had no horse in the matter. Pw1 and pw2 could not each identify the same person. Pw1 was of the view that pw2 went back to help. On the other hand, PW2 maintained that he managed to escape. Such contradictions raise doubt as to the truthfulness of the sequence of event as narrated by PW1.
4. Further the evidence of DW2 and PW3 are accomplices. Their evidence cannot be relied on without safeguards that must follow evidence of an accomplice. First it was not shown that the appellant had the phone. On accomplice evidence, the court of appeal in the case of John Kirunji m’rimbere v Republic [2015] KECA 107 (KLR) , the court of appeal [Nambuye, Kiage & Sichale, JJ.A)],posited as follows:
On the issue of accomplice evidence which the appellant contends was improperly acted upon, this Court in STEPHEN KALENG MAKALALE & ANOTHER –VS- R (2010) eklr observed,
“The position in law with regard to accomplices is this. An accomplice is a competent witness against an accused person (see S.141 of the Evidence Act, Cap 80 Laws of Kenya). However such evidence needs corroboration. In the case of UGANDA –VS- SHAH [1966] EA 30, the Court of Appeal For East Africa, in dealing with the question of accomplice evidence, rendered itself, as follows:
“The second and third grounds of appeal were that the learned judge had erred in holding that there was no independent evidence incriminating either the first or third respondent, corroborating the accomplice evidence against them. The facts relied on by the prosecution were the finding of the 113 ½ bags of Arabica coffee on the Busikikiri Estate where only Robusta was grown, and the expert evidence that the coffee so found was similar in quality to the stolen coffee.
The learned magistrate held that these facts were capable of amounting to corroboration.
…
Evidence to be corroborative must be independent and it must implicate, or tend to implicate, the individual accused in the offence .”
40. Accomplice evidence for all practical purposes, as the law in this country stands, is worthless. There must be steps taken to ensure that the accomplice is not protecting his own skin. The same must be free from motivation or must in the process also implicate the accomplice. If it is for the accomplice to wriggle out of criminal liability, the motivation to lie is higher. In the case of Nyamongo v Republic [2025] KECA 639 (KLR) , the court of appeal[HM Okwengu, HA Omondi & JM Ngugi, JJA ] , stated as follows:
The correct judicial treatment of accomplice evidence in criminal cases was best summarized in Waringa -V- Republic [1984] KLR 617 where this Court down the following three principles in considering accomplice evidence:
a. When considering the evidence of an accomplice, the first duty of the court is to decide whether the accomplice is a credible witness.
b. If the accomplice evidence is credible, the court should consider if there is corroborating evidence. This step only follows if the Court finds the accomplice is a credible witness. The corroboration which should be looked for when considering the evidence of an accomplice is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
c. The corroboration must be independent evidence which affects the Accused Person by connecting him or her or tending to connect him or her with the crime.
64.In a later case, Karanja & Another -V- Republic [1990] KLR, this Court, while affirming the principles laid down in Waringa (supra), suggested that there may be circumstances where corroboration may be unnecessary:Although there may be cases of an exceptional character in which an accomplice’s evidence alone convinces the court of the facts required to be proved, the uncorroborated evidence of such a witness should generally be held to be untrustworthy for three reasons. The accomplice is likely to swear falsely in order to shift the guilt from himself. As a participator in the crime, he is an immoral person who is likely to disregard the sanctity of an oath. He gives his evidence either under a promise of a pardon or in expectation of an implied promise of pardon and is therefore liable to favour the prosecution ….. An accomplice is of course a competent witness but corroboration should be found for his evidence before a conviction can be based upon it.”
65.Hence, the law and practice on accomplice evidence as it exists in Kenya today is that while an accomplice is a competent witness, accomplice evidence should be received with great caution, and where uncorroborated, should have little weight. As such, our decisional law has clarified that while a witness’s status as an accomplice does not render his or her evidence unreliable per se, a trial court must exercise appropriate caution in assessing his or her evidence. In particular, when weighing the probative value of accomplice evidence, the trial court is obligated to carefully consider the totality of the circumstances in which the evidence was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person or to lie. This judicial treatment of accomplice evidence is based on the fear that an accomplice may be motivated to falsify his testimony in the hope of securing leniency for himself or herself. However, the dangers associated with accomplice evidence are greatly reduced or eliminated where the key aspects of the accomplice evidence are corroborated. The dangers are also substantially mitigated where, as here, the accomplice evidence is not testimonial but in the form of a confession which has not been incentivized by the state.
41. The evidence of DW2 and PW3 cannot as such be used as against the appellant herein. The court below misdirected itself in relying on the evidence of PW3 as evidence against the appellant.
42. Secondly that the phone that was produced was not robbed from any of the complainants. It is crucial to note that none of the items robbed on the material day were recovered from the accused just a few hours after the alleged robbery. The phone allegedly recovered was not linked to the robbery in issue. It was not shown to have been robbed on the material day. None of the items robbed on the material da
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2. The Appellant was charged jointly with Francis Thiongo Mwangi with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0230hrs at Mukuyu Market in Murang’a East sub county of Murang’a County, the duo, while armed with a dangerous weapon namely knife robbed Risper Nkirote Mugambi of mobile phone make Neon Ray valued at Ksh. 4,500/= and immediately before the time of such robbery used actual violence to the said Risper Nkirote Mugambi.
3. The Appellant was also charged in Count II with attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0300hrs along Kahuro-Mukuyu road in Maragi location of Murang’a County, the duo, while armed with a dangerous weapon namely knife attempted to rob Godfrey Kinoti Gitonga and at the time of such attempt used actual violence to the said Godfrey Kinoti Gitonga.
4. There was also count III where the Appellant was charged with attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0300hrs along Kahuro-Mukuyu road in Maragi location of Murang’a County, the duo, while armed with a dangerous weapon namely knife attempted to rob Faith Kwamboka Mbaka and at the time of such attempt used actual violence to the said Faith Kwamboka Mbaka.
5. The Appellant was arraigned in court on 13.2.2023 where he pleaded not guilty. The court heard the matter and found the Appellant guilty and convicted him on all the 3 counts on 14.2.2023. The court sentenced him to serve death penalty in count II and held the sentence in count I and II in abeyance.
6. The Appellant filed a petition of appeal dated 16.4.2024 setting out the following grounds of appeal:
a) That the trial court erred in both law and in fact in convicting the appellant when the Respondent failed to describe clearly the alleged perpetrators of the offence.
b) The trial court erred in both law and in fact in relying on poor identification at night, violating Turnbull guidelines.
c) The trial court erred in law and in fact in failing to find that the mode of arrest had no connection with commitment of the offences.
d) The trial court erred in law and in fact in failing to find that the prosecution evidence was marred with contradictions, inconsistencies and discrepancies.
e) The trial court erred in law and in fact in failing to analyse submissions and defence of the Appellant and shifting the burden of proof.
f) That the trial court erred in law and in fact in meting out a maximum mandatory harsh sentence of death which was manifestly excessive as per the circumstances of this case.
Evidence and Proceedings
7. PW1 was Risper Nkirote Mugambi. She was a student at Kiharu Technical College. According to her, on 11.2.2023, there was a freshers’ night in college and she was heading out to go to her hostel at 2.30 am. She was in the company of Franklin Gikunda. About 200m from the college gate, they saw a motorbike approaching and on reaching them it stopped. It was motorcycle registration No. KMFL 392Q.
8. She testified that there were security lights from the college compound that lit the area and the motorcycle’s light was on, which supplemented this. She was thus able to see 3 men on the motorcycle that had now stopped. 2 of the three men alighted and approached her with Francklin. They offered to carry Risper and Franklin, who declined. One man pursued PW1 while the other pursued Franklin. Franklin managed to escape and the man pursuing him followed chasing him. The man pursuing PW1 manhandled her and was joined by the man who had pursued Franklin shortly after. The duo ransacked her pockets and got her mobile phone which they took away. She was left on the ground and the duo fled. Franklin later arrived with the school dean and assisted her to go back to the college. The matter was reported the next morning to the police station.
9. On cross examination, PW1 testified that she saw the assailants clearly. The scene was well lit by security light. Franklin was dressed in flowered shirt and had no jacket.
10. PW2 was Franklin Gikunda Mugungo. He was with PW1 at the time of the robbery with violence. He managed to escape. With PW1, he was at outside the college gate. The men approached on a motorbike and stopped. He heard the men demand them to hand over phones. He saw 4 men. Francis Thiong’o is the one who pursued him. On return to the scene, he found PW1 down and the assailants had escaped.
11. On cross-examination, PW2 testified that the motorcycle rider had covered his face and, therefore, he was unable to identify him. He further stated that the motorcycle involved was red in colour.
12. PW3 was Dennis Kari Mukanyi. He lived in Mukuyu area and supplied bread from the depot using his motorcycle registration number KMFL 392Q Make Captain red in colour. The Appellant was one of the riders who supplied bread. He would use the motorcycle also as bodaboda at an agreed daily rate of Ksh. 300/=. On 10.2.2023, he had gone to Maragua Ridge and left the motorcycle with the Appellant. That night around 4.30 am, a friend known as Duncan called him and informed him his motorbike was about to be burned down near Kiharu Technical College as the person he had given had used it to rob people of their phones.
13. He got up and rushed to the scene. He saw the motorbike and the Appellant emerged from the place he had hidden. His motorcycle was hidden and he noted that it had no fuel. He fueled it and took it to the police station. On cross examination, he did not know who hid the motorbike. The Appellant had hidden on the opposite side. The Appellant led police to the house of the Francis Thiongo who was arrested in connection with the offence.
14. PW4 was Michael Oduor Omondi, a lecturer and Dean of Students at Kiharu Technical College. He testified that on 11.02.2023 at about 2.30 a.m., he was at the college attending a Fresher's Night event, which required his presence. He heard screams and, together with others, rushed to the scene. Upon arrival, he saw one Franklin running towards the gate and observed PW1 lying on the ground at some distance away, screaming. He was informed that the men who had robbed the students had already fled. The matter was subsequently reported to Murang'a Police Station. He further stated that other students, namely Gitonga and Faith, had also been attacked by the same men who were riding the same motorcycle.
15. On cross-examination, PW4 testified that he saw the assailants and that they attempted to stop him. However, he stated that he did not know them and was therefore unable to identify them.
16. PW5 was Godfrey Gitonga. He knew the Appellant though they were not related. On 11.2.2023 at 3.00 am, he was headed home from Kiharu Technical College. He was with Faith Kwamboka. Reaching Maragi Secondary school area, a motorcycle approached them. Its registration number was KMFL 392Q. Those on board alighted. They approached him and asked for a phone. They were 4 men. One was armed with a knife. He placed on Faith demanding her phone. They attacked.
17. He managed to snatch the knife and throw it away. He was cut on the left arm. He recognized the Appellant. He had earlier carried him on the motorcycle. The Appellant then fled. He pursued the Appellant. The other 3 men followed him throwing stones. He hid in a bush. He later went back to check Faith. The attackers fled on the motorcycle.
18. On cross-examination, the witness stated that he clearly identified the Appellant as the motorcycle rider. He further testified that he arrested the Appellant, but the Appellant escaped and fled.
19. PW6 was Faith Kwamboka Mbaka. She was a student at Kiharu Technical College. On 11.2.2023, she was in the company of PW5. She was heading to her hostels. A motorcycle approached from behind. It was 0300 hours. The motorcycle parked at Maragi Secondary. She saw the registration number. It was KMFL 392Q. 4 men alighted and demanded them to stop. They did not. One man drew a knife and a phone. PW5 took her phone and kept with him. PW5 recognized one man who fled. The other 3 men followed throwing stones at PW5. The man who ransacked her had wrapped his head with a shuka. She did not identify the attackers. On cross examination, she stated that she read the number plate as the motorcycle drove past them before stopping.
20. PW7 was No. 256351, Jacob Mutua from DCI Murang’a. He was the investigating officer. On 11.2.2023 at 7.00 am, PW3 came to the station reporting that his motorcycle was used in a crime in robbing people. He had given it to the Appellant. Some students had been robbed. PW3 led him to the Appellant’s house. He was assisted by PC Thumbi. The Appellant gave a phone he had stolen. It was Zte Mobile phone. They had not managed to trace the owner.
21. The Appellant then led them to the house of Francis Thiongo and they found him sleeping. He woke up. He said that the phones they had stolen were with one of them. He offered to take them to the other suspect. They did not find him. They were told he was at a construction site. They headed there. On arrival, he escaped and has not been found. There was no need for identification parade as PW3 recognized the attackers. PW1 also identified the Appellant.
22. On cross examination, he testified that the Appellant left his ID Card with PW3 when he took the motorcycle for bodaboda use. The motorcycle was in his custody during the robbery. They did not recover anything from Francis Thiongo.
23. PW8 was Lawrence Wanduru Njoroge. He was a clinical officer at Murang’a Referral hospital. He filed P3 Form for PW1. On examination, she had tenderness and bruises on her left knee consistent with assault. The degree was harm and the weapon used was crude. On cross examination, the injury was caused by a hard surface consistent with a hit or fall.
24. At the close of the prosecution's case, the Appellant was placed on his defence, the court having found that a prima facie case had been established against him. The provisions of section 211 of the Criminal Procedure Code were duly complied with. The Appellant elected to give sworn testimony and was accordingly cross-examined by the prosecution.
25. DW1 was the Appellant. He testified that he was 23 years old. He recalled that on 11.02.2023, he had been hired to do some work in Sagana where he grafted 1,000 trees. At about 6.00 p.m., he travelled to Murang'a and arrived at Mukuyu at around 7.00 p.m. While at Mukuyu, he met one Francis Thiongo, who informed him that he wished to purchase a mobile phone. The Appellant told Francis that he had a phone which he was selling for Kshs.1,500/=. They agreed to meet the following morning to discuss the sale. On the following day he was awakened by a knock on his door. Upon opening, he found police officers in the company of PW3. He was then arrested.
26. On cross-examination, he maintained that on the night of 11.02.2023 he had been asleep in his house. He also admitted that he had previously worked for PW3 using the motorcycle in question. However, he did not use the same on the material date.
27. DW2 was Francis Thiongo. He was a bodaboda rider. The police told him to give them the phone he had bought from the Appellant. The Appellant had not even shown them the phone he wanted to sell to him. The phone was recovered from the Appellant. On cross examination, he was home asleep on the night of the alleged offences.
Submissions
28. The Appellant filed submissions dated 19.11.2025 by which it was submitted that he was convicted without clear evidence on identification and recognition. That the alleged source of light was not proved to be sufficient to identify the Appellant. Reliance was placed on the case of Teresia Nduta v Republic (2016) eKLR . It was also submitted that the Appellant was not identified at the scene of crime and he was home at the time of the alleged offence.
29. On sentence, it was submitted that the sentence was mandatory maximum and was unconstitutional as it breeched his rights to fair hearing under Article 50(2) of the Constitution. He was a first offender, remorseful and suitable for rehabilitation. He also cited Article 26 of the Constitution.
30. I have not had sight of the Respondent’s submissions.
Analysis
31. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
32. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36 , the former East Africa Court of Appeal stated on the duty of the court on a first appeal as follows:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
33. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
34. Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970 }, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
35. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
36. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
37. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
38. In criminal cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR) , expressed himself as hereunder:
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
39. Reasonable doubt needs not reach certainty, but it must carry a high degree of probability. In the case of Moses Nato Raphael v Republic [2015] KECA 787 (KLR) , the court of appeal[ Githinji, Karanja & Mwilu, JJ.A] held as follows:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
1. PW1 stated that she saw the Appellant. There was security light. The Appellant was wearing a flowery shirt. He wrestled PW1 and was accompanied by Francis Thiongo when they manhandled her, ransacked her and having thrown her to the ground snatched her phone. PW3 stated that his motorcycle in question was given to the Appellant who had it on the material early morning. However, this is not borne out of evidence.
2. At least one element of his defence was proved, that he was sleeping. What he was doing the previous day is irrelevant. He was sleeping when the police and PW3 came to his house. Nothing placed him on the subject motor vehicle. One witness indicated, and rightly so, that the rider covered his face. If the rider covered his face, what magic did the rest use to see him. Some pointed out that the appellant was not the rider but one of the participants. Others placed him as a rider.
3. PW4 was categorical that he was unable to identify the assailant. This is crucial since the PW4, saw the assailants but did not identify them. What hindered him from identifying the assailants, lights? The witness could be said a neutral one. He was not injured in the process. Other than responsibility, he had no horse in the matter. Pw1 and pw2 could not each identify the same person. Pw1 was of the view that pw2 went back to help. On the other hand, PW2 maintained that he managed to escape. Such contradictions raise doubt as to the truthfulness of the sequence of event as narrated by PW1.
4. Further the evidence of DW2 and PW3 are accomplices. Their evidence cannot be relied on without safeguards that must follow evidence of an accomplice. First it was not shown that the appellant had the phone. On accomplice evidence, the court of appeal in the case of John Kirunji m’rimbere v Republic [2015] KECA 107 (KLR) , the court of appeal [Nambuye, Kiage & Sichale, JJ.A)],posited as follows:
On the issue of accomplice evidence which the appellant contends was improperly acted upon, this Court in STEPHEN KALENG MAKALALE & ANOTHER –VS- R (2010) eklr observed,
“The position in law with regard to accomplices is this. An accomplice is a competent witness against an accused person (see S.141 of the Evidence Act, Cap 80 Laws of Kenya). However such evidence needs corroboration. In the case of UGANDA –VS- SHAH [1966] EA 30, the Court of Appeal For East Africa, in dealing with the question of accomplice evidence, rendered itself, as follows:
“The second and third grounds of appeal were that the learned judge had erred in holding that there was no independent evidence incriminating either the first or third respondent, corroborating the accomplice evidence against them. The facts relied on by the prosecution were the finding of the 113 ½ bags of Arabica coffee on the Busikikiri Estate where only Robusta was grown, and the expert evidence that the coffee so found was similar in quality to the stolen coffee.
The learned magistrate held that these facts were capable of amounting to corroboration.
…
Evidence to be corroborative must be independent and it must implicate, or tend to implicate, the individual accused in the offence .”
40. Accomplice evidence for all practical purposes, as the law in this country stands, is worthless. There must be steps taken to ensure that the accomplice is not protecting his own skin. The same must be free from motivation or must in the process also implicate the accomplice. If it is for the accomplice to wriggle out of criminal liability, the motivation to lie is higher. In the case of Nyamongo v Republic [2025] KECA 639 (KLR) , the court of appeal[HM Okwengu, HA Omondi & JM Ngugi, JJA ] , stated as follows:
The correct judicial treatment of accomplice evidence in criminal cases was best summarized in Waringa -V- Republic [1984] KLR 617 where this Court down the following three principles in considering accomplice evidence:
a. When considering the evidence of an accomplice, the first duty of the court is to decide whether the accomplice is a credible witness.
b. If the accomplice evidence is credible, the court should consider if there is corroborating evidence. This step only follows if the Court finds the accomplice is a credible witness. The corroboration which should be looked for when considering the evidence of an accomplice is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
c. The corroboration must be independent evidence which affects the Accused Person by connecting him or her or tending to connect him or her with the crime.
64.In a later case, Karanja & Another -V- Republic [1990] KLR, this Court, while affirming the principles laid down in Waringa (supra), suggested that there may be circumstances where corroboration may be unnecessary:Although there may be cases of an exceptional character in which an accomplice’s evidence alone convinces the court of the facts required to be proved, the uncorroborated evidence of such a witness should generally be held to be untrustworthy for three reasons. The accomplice is likely to swear falsely in order to shift the guilt from himself. As a participator in the crime, he is an immoral person who is likely to disregard the sanctity of an oath. He gives his evidence either under a promise of a pardon or in expectation of an implied promise of pardon and is therefore liable to favour the prosecution ….. An accomplice is of course a competent witness but corroboration should be found for his evidence before a conviction can be based upon it.”
65.Hence, the law and practice on accomplice evidence as it exists in Kenya today is that while an accomplice is a competent witness, accomplice evidence should be received with great caution, and where uncorroborated, should have little weight. As such, our decisional law has clarified that while a witness’s status as an accomplice does not render his or her evidence unreliable per se, a trial court must exercise appropriate caution in assessing his or her evidence. In particular, when weighing the probative value of accomplice evidence, the trial court is obligated to carefully consider the totality of the circumstances in which the evidence was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person or to lie. This judicial treatment of accomplice evidence is based on the fear that an accomplice may be motivated to falsify his testimony in the hope of securing leniency for himself or herself. However, the dangers associated with accomplice evidence are greatly reduced or eliminated where the key aspects of the accomplice evidence are corroborated. The dangers are also substantially mitigated where, as here, the accomplice evidence is not testimonial but in the form of a confession which has not been incentivized by the state.
41. The evidence of DW2 and PW3 cannot as such be used as against the appellant herein. The court below misdirected itself in relying on the evidence of PW3 as evidence against the appellant.
42. Secondly that the phone that was produced was not robbed from any of the complainants. It is crucial to note that none of the items robbed on the material day were recovered from the accused just a few hours after the alleged robbery. The phone allegedly recovered was not linked to the robbery in issue. It was not shown to have been robbed on the material day. None of the items robbed on the material da
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