The appellant being dissatisfied with the decision of the Honorable trial magistrate court do appeal against both conviction and sentence on the following grounds; -
1. That, the learned magistrate erred in finding the appellant guilty based on circumstantial evidence when it was not safe to convict on the same.
2. That, the sentence was harsh and was arrived at without regard to mitigating factors.
3. That, the learned trial magistrate erred in both law and facts in finding that the identification parade conducted was proper but failed to note that the evidence was not properly procured, there were glaring irregularities and procedural technicalities were flawed.
4. That, the learned trial magistrate erred in both matters of law and fact by holding that the offence of robbery with violence contrary to section 296 (2) of the Penal Code was proved against the appellant but failed to note that the elements of the offence were not proved against the appellant.
5. That, the learned magistrate-imposed death sentence which is manifestly harsh, excessive, unjust and unconstitutional against the recent jurisprudences.
Brief facts
The Appellant was charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code.
The particulars of the offence are that on 27th December, 2023at Mususya Village, Kivaani Location in Kangundo Sub-county in Machakos County, the accused robbed the complainant, Mr.Joseph Makau Muindi of two mobile phones(Nokia and Xtigi) and cash, all valued at Kshs. 5000 and immediately before such robbery assaulted the said complainant.
The Appellants pleaded not guilty to the charges and the matter was set down for hearing.
The prosecution called five (5) witnesses in proving its case and the Appellant tendered sworn evidence. The Appellant was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code and was sentenced to death as was provided by the law.
Prosecution case
PW1 – Joseph Makau Muindi (the complainant). He is elderly man living alone in Muthuthie Village. On 27th December 2023 at about 7.00 p.m., after Christmas, he stepped outside his house for a short call. He was suddenly held by the neck and mouth by a person he recognised as the Appellant, James Nzola Muasya, his neighbour. The security lights were on. He lost consciousness. When he recovered, the money he had in his pocket and his two mobile phones (Nokia and Xtigi) were missing. His neighbour, Katunga (PW3), heard his screams, came out with a torch, and the attacker fled. The following day the village headman took him to report the matter to the police. He was treated at hospital. He maintained that he clearly saw and recognized the Appellant under the lights and that he had no grudge against him.
PW2 – Corazon Cherop (Clinical Officer). She is attached to Kakuyuni Health Centre. She examined the complainant on 27th December 2023. He reported that he had been strangled by a person known to him and that hands had been forced into his mouth. She found soft-tissue injuries to the mouth, bruises and abrasions. She filled and produced the P3 form confirming the injuries.
PW3 – David Katunga Mwanzia. He is a neighbour and fundi. At about 7.00 p.m. on the material day he heard screams coming from the complainant’s house. The security lights were on. He saw a person he recognized as Nzola (the Appellant) leaving the house and disappearing into a maize plantation. He went to the complainant’s house and found him bleeding from the mouth. He raised the alarm; neighbours gathered. They later went to the Appellant’s home, found him wearing the same clothes, and detained him. The Appellant was asked to produce the phones but had none. A phone battery allegedly belonging to the complainant was later recovered. PW3 stated he had no personal differences with the Appellant.
PW4 – Phonsian Mutuku Kamunzyu (Assistant Chief, Ngumuti Sub-location). On 28th December, 2023 he received information that a suspect had been arrested and locked in a house at the complainant’s home amid a hostile crowd. He called the police, controlled the crowd, and found the Appellant inside the house, bleeding. He knew the Appellant as a long-time resident of the sub-location. The Appellant was then taken to Kivaani Police Post.
PW5 – No. 67669 CPL Julius Bett (Investigating Officer). He was based at Kivaani Police Post. He responded to the Assistant Chief’s call, found a large crowd, and secured the Appellant who was locked in the house. He recorded that the Appellant had allegedly attacked the elderly complainant, strangled him and taken two phones. Police later searched the Appellant’s house and recovered a phone battery which the complainant identified as belonging to one of his stolen phones. The complainant and the Appellant were neighbours and no prior grudge was known. The incident occurred on 27th December 2023 and the arrest on 28th December 2023.
Defence case
The Appellant, James Nzola Muasya, gave a sworn defence and was the sole defence witness.
In his defence the appellant denied any involvement in the robbery or assault. He maintained that the case against him was false and that he had been framed by the neighbour David Katunga because of a long-standing personal dispute arising from a disagreement over a woman. He rejected Katunga’s account entirely, asserting that identification based merely on clothing was unreliable and that Katunga’s testimony in court did not match his earlier statement. While he could not specifically recall his whereabouts on the evening of 27th December 2023, he firmly denied being at the complainant’s home. He acknowledged that he and the complainant were neighbours who had known each other for years, but insisted that he was arrested at his own home by local Nyumba Kumi elders and only later encountered Katunga at the complainant’s house. He maintained that the accusations stemmed from jealousy and personal differences rather than any genuine participation in the offence.
Appellant submissions
Whether the burden of prove was discharged
The appellant herein was arrested in possession of a phone battery allegedly robbed from the complainant of this case. We are also told that the phone battery was recovered within twenty-four hours after the alleged robbery. Would that be the case, then it would translate to the application of the doctrine of recent possession.
In the case of Isaac Ng’ang’a Kahiga & Another vs Republic (2005)eKLR the court ruled thus on the Doctrine of recent possession:” it is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.” In other words,” there must be positive proof that:
i) The property was found with the suspect; and
ii) The property is positively the property of the complainants; and
iii) The property was recently stolen from the complainants.”
PW1 testified that he was robbed off a phone with its battery. It is this battery that we are told was recovered from the appellant’s home.
On recovery several questions arise:
a) How did PW1 or PW3 identify the alleged battery given that there are no unique identifying features alluded to in their testimonies?
b) Who and by what power led the alleged search into recovery of the alleged battery.
The appellant submits that the alleged recovery was thus in violation of the appellant’s right to privacy (provided under Article 31 of the Constitution of Kenya 2010) and hence unprocedural.
The absence of search warrant hence renders the entire evidence of recovery inadmissible in line with Article 50(4) of the Constitution which states thus:” Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”.
Once recovery falls, then the entire story lacks corroboration on the aspect of fraudulent loss of PW1’s property, and the entire narrative mutates from robbery to assault, given that there was no eye-witness to alleged robbery.
In line with Section 124 of the Evidence Act, the appellant was not liable to be prosecuted on a charge of robbery with violence as the same lacks corroboration
In John Muiruri Vs Republic 1983 KLR 445 the court ruled thus:
“In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.”
Whether the medical evidence was inadmissible
PW2, Corazon Cherop, testifies as to being a clinical officer attached to Kukuyuni Health centre. PW2 presents medical evidence (P3 Form) related to alleged injuries meted on PW1. She testifies us to filling the P3 form. However, the same bears the stamp of Kangundo Level IV Hospital despite fact that PW2 does testify as to working at Kakuyuni and not Kangundo Level IV Hospital. These facilities are different. Further, the P3 form does not bear the identity the maker.
The appellant submit that the medical evidence presented by PW2 is inadmissible on the light of Sections 48, 50 as well as Section 77 of the Evidence Act.
On sentencing, the appellant mitigated thus: that he has no parents and or siblings. The appellant submits that the learned trial magistrate erred in law by finding that Section 296(2) of the Penal Code carries a mandatory death sentence.
The mandatory nature of death sentence for robbery with violence convicts has since been ruled unconstitutional in the case of Shaban Salim Ramadhan & 8 Others v Attorney General & another Petition No. 5 Of 2022) & Constitutional Petition No. 6 of 2022 Consolidated 2024 at Mombasa
On the other hand, the aggravating factors in this case needed to be balanced with mitigation in line with Section(s) 216 and 329 of the Criminal Procedure Code.
The death sentence meted on the appellant is not only dehumanizing. but also cruel and degrading punishment in violation of Article 25(a) of the Constitution of Kenya 2010.
Respondent submissions
In order to prove an offence of robbery with violence one has to prove robbery and violence and thus prove;
a) Theft
b) Use of or threat to use actual violence
c) Identity of the perpetrator
Theft, PWI states that the Appellant attacked him and when his neighbour came to his rescue the Appellant ran away. PW1 states “ I had money in my pocket. I found my money missing, my phone was taken too... my phone was not found he placed my battery in his phone I saw them when he was arrested.” This proves that items were stolen during the incident.
Use of or threat to use actual violence. PW1 states he was strangled by the Appellant. When he stepped out the Appellant held him by his neck and he lost consciousness. PW2 the clinical officer while referring to Pext. 1 testified that PW1 has soft tissue injuries in the mouth. This proves that there was use of actual force during the incident and the complainants suffered injuries during the incident.
Identity of the perpetrator. PWI states he saw the Appellant as there was lights were on. His neighbour PW3 further stated that the security lights of PW1 home were on. He then saw the Appellant open PW1 home. When he went to PWI home he found him bleeding from his mouth. He and others then went to arrest the Appellant. They found the Appellant with the same clothes he had put in with. They arrested the Appellant at his house. identification was by recognition which is the best form of identification thus this ingredient was proved.
Defence. The Appellant tendered sworn evidence. He denies the offence. He states that he did not rob the complainant. He states he had a disagreement with PW3 and thus PW3 told PWI that he had attacked him which was not true. He further stated that he rejected PW3 statement and his testimony The Appellant's defence was an afterthought and none of the issues he raises in his defence were raised during the prosecution case and more so during cross examination of the prosecution witnesses.
On sentencing, the Appellant was sentenced to death on 15th September, 2025, The prosecution stated he was a 1st offender. The Appellant in mitigation stated that he lives alone, he has no parents or siblings. The trial court thereafter ordered for a pre-sentencing report.
Section 296 (2) provides that: “if the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more other person or persons or if at or immediately before or immediately after the time of the robbery he wounds, strikes or uses any other personal violence to any person he shall be sentenced to death.”
The lawful sentence for offence of robbery with violence is death sentence.
Issue
1. Whether the ingredients of the offence were proved.
Analysis
This being a first appeal, I am required to re-evaluate the evidence afresh, make my own findings and draw my own conclusions while giving allowance for the fact that I neither saw nor heard the witnesses (Okeno v Republic [1972] EA 32).
Section 295 of the Penal Code defines robbery. Section 296(2) provides:
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
The ingredients of the offence were set out by the Court of Appeal in Oluoch v Republic [1985] KLR 549 They are to be read disjunctively. Proof of theft coupled with any one of the three circumstances (being armed, being in company, or use of personal violence) is sufficient to sustain a conviction.
There is no dispute that PW1 was assaulted. The medical evidence supports that fact. There is also evidence that PW1 lost property during the incident. The main issue is whether the prosecution proved beyond reasonable doubt that the Appellant was the person who robbed and assaulted PW1.
The critical issue in this appeal is identification. Although both PW1 and PW3 claimed to recognise the Appellant as a neighbour, the circumstances raise serious doubts. The incident occurred at night at approximately 7.00 p.m. PW1 lost consciousness almost immediately. The opportunity for reliable observation was therefore limited. PW3’s identification was made from a distance as a person left the house and entered a maize plantation. No description of distinctive clothing or features was given at the earliest opportunity.
The record does not sufficiently establish the nature, intensity or position of the light relied upon by PW1 and PW3. There is no detailed evidence concerning the distance between the witnesses and the alleged assailant, the duration for which PW1 observed him, or the precise circumstances under which PW3 allegedly saw him leave the house.
Alleged recovery and recent possession
The recovery of a phone battery from the Appellant’s house is equally problematic. No unique identifying marks were established. The search appears to have been conducted without a warrant. The doctrine of recent possession requires positive proof that the item found is the identical property stolen from the complainant
In the case of Isaac Ng’ang’a Kahiga & Another vs Republic (2005)eKLR the court ruled thus on the Doctrine of recent possession:” it is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.” In other words,” there must be positive proof that:
i) The property was found with the suspect; and
ii) The property is positively the property of the complainants; and
iii) The property was recently stolen from the complainants.”
The prosecution sought to connect the Appellant to the robbery through the recovery of a phone and/or battery from his house. However, the evidence on this important issue is materially uncertain.
PW5 testified that a phone was recovered from the Appellant's house but that the complainant did not identify the phone as his. According to PW5, the complainant only identified the battery as belonging to him. PW5 also acknowledged that he did not know to whom the phone belonged.
This evidence does not establish with sufficient certainty that the alleged battery was uniquely identifiable as the complainant's property. There was no evidence of a serial number, distinctive mark, receipt, photograph or other identifying feature capable of positively connecting the battery to PW1.
The fact that the battery could fit or be used in PW1's phone does not, without more, prove ownership.
Therefore, I find that the doctrine of recent possession was not available to the prosecution as a basis for sustaining the conviction.
Defence
The Appellant raised a defence of framing arising from a personal dispute with PW3. While the defence was not elaborately particularized during cross-examination of the prosecution witnesses, it introduces a possible motive for false implication that the prosecution did not displace.
When the evidence of recognition is examined against the caution required in cases of visual identification, and when the weaknesses in the recovery of the battery are considered, I am left with a reasonable doubt as to whether the Appellant was the person who attacked and robbed the complainant.
Cleophas Otieno Wamunga v Republic, (1989) KLR 424, in the following words: -
“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.
The Court must approach the identification evidence with caution. It is not sufficient that the witnesses knew the Appellant beforehand. The prosecution must still establish that the circumstances of the recognition were such that the witnesses could safely identify him as the person who committed the offence.
The difficulty is compounded by the evidence concerning the allegedly recovered property.
The prosecution bore the burden of proving the case beyond reasonable doubt. That burden has not been discharged. The conviction is unsafe.
It is for the above reason I find that the appeal is meritorious. The appeal therefore succeeds. The appellant should therefore be released, unless lawfully held.
It is so ordered.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANT
1. That, the learned magistrate erred in finding the appellant guilty based on circumstantial evidence when it was not safe to convict on the same.
2. That, the sentence was harsh and was arrived at without regard to mitigating factors.
3. That, the learned trial magistrate erred in both law and facts in finding that the identification parade conducted was proper but failed to note that the evidence was not properly procured, there were glaring irregularities and procedural technicalities were flawed.
4. That, the learned trial magistrate erred in both matters of law and fact by holding that the offence of robbery with violence contrary to section 296 (2) of the Penal Code was proved against the appellant but failed to note that the elements of the offence were not proved against the appellant.
5. That, the learned magistrate-imposed death sentence which is manifestly harsh, excessive, unjust and unconstitutional against the recent jurisprudences.
Brief facts
The Appellant was charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code.
The particulars of the offence are that on 27th December, 2023at Mususya Village, Kivaani Location in Kangundo Sub-county in Machakos County, the accused robbed the complainant, Mr.Joseph Makau Muindi of two mobile phones(Nokia and Xtigi) and cash, all valued at Kshs. 5000 and immediately before such robbery assaulted the said complainant.
The Appellants pleaded not guilty to the charges and the matter was set down for hearing.
The prosecution called five (5) witnesses in proving its case and the Appellant tendered sworn evidence. The Appellant was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code and was sentenced to death as was provided by the law.
Prosecution case
PW1 – Joseph Makau Muindi (the complainant). He is elderly man living alone in Muthuthie Village. On 27th December 2023 at about 7.00 p.m., after Christmas, he stepped outside his house for a short call. He was suddenly held by the neck and mouth by a person he recognised as the Appellant, James Nzola Muasya, his neighbour. The security lights were on. He lost consciousness. When he recovered, the money he had in his pocket and his two mobile phones (Nokia and Xtigi) were missing. His neighbour, Katunga (PW3), heard his screams, came out with a torch, and the attacker fled. The following day the village headman took him to report the matter to the police. He was treated at hospital. He maintained that he clearly saw and recognized the Appellant under the lights and that he had no grudge against him.
PW2 – Corazon Cherop (Clinical Officer). She is attached to Kakuyuni Health Centre. She examined the complainant on 27th December 2023. He reported that he had been strangled by a person known to him and that hands had been forced into his mouth. She found soft-tissue injuries to the mouth, bruises and abrasions. She filled and produced the P3 form confirming the injuries.
PW3 – David Katunga Mwanzia. He is a neighbour and fundi. At about 7.00 p.m. on the material day he heard screams coming from the complainant’s house. The security lights were on. He saw a person he recognized as Nzola (the Appellant) leaving the house and disappearing into a maize plantation. He went to the complainant’s house and found him bleeding from the mouth. He raised the alarm; neighbours gathered. They later went to the Appellant’s home, found him wearing the same clothes, and detained him. The Appellant was asked to produce the phones but had none. A phone battery allegedly belonging to the complainant was later recovered. PW3 stated he had no personal differences with the Appellant.
PW4 – Phonsian Mutuku Kamunzyu (Assistant Chief, Ngumuti Sub-location). On 28th December, 2023 he received information that a suspect had been arrested and locked in a house at the complainant’s home amid a hostile crowd. He called the police, controlled the crowd, and found the Appellant inside the house, bleeding. He knew the Appellant as a long-time resident of the sub-location. The Appellant was then taken to Kivaani Police Post.
PW5 – No. 67669 CPL Julius Bett (Investigating Officer). He was based at Kivaani Police Post. He responded to the Assistant Chief’s call, found a large crowd, and secured the Appellant who was locked in the house. He recorded that the Appellant had allegedly attacked the elderly complainant, strangled him and taken two phones. Police later searched the Appellant’s house and recovered a phone battery which the complainant identified as belonging to one of his stolen phones. The complainant and the Appellant were neighbours and no prior grudge was known. The incident occurred on 27th December 2023 and the arrest on 28th December 2023.
Defence case
The Appellant, James Nzola Muasya, gave a sworn defence and was the sole defence witness.
In his defence the appellant denied any involvement in the robbery or assault. He maintained that the case against him was false and that he had been framed by the neighbour David Katunga because of a long-standing personal dispute arising from a disagreement over a woman. He rejected Katunga’s account entirely, asserting that identification based merely on clothing was unreliable and that Katunga’s testimony in court did not match his earlier statement. While he could not specifically recall his whereabouts on the evening of 27th December 2023, he firmly denied being at the complainant’s home. He acknowledged that he and the complainant were neighbours who had known each other for years, but insisted that he was arrested at his own home by local Nyumba Kumi elders and only later encountered Katunga at the complainant’s house. He maintained that the accusations stemmed from jealousy and personal differences rather than any genuine participation in the offence.
Appellant submissions
Whether the burden of prove was discharged
The appellant herein was arrested in possession of a phone battery allegedly robbed from the complainant of this case. We are also told that the phone battery was recovered within twenty-four hours after the alleged robbery. Would that be the case, then it would translate to the application of the doctrine of recent possession.
In the case of Isaac Ng’ang’a Kahiga & Another vs Republic (2005)eKLR the court ruled thus on the Doctrine of recent possession:” it is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.” In other words,” there must be positive proof that:
i) The property was found with the suspect; and
ii) The property is positively the property of the complainants; and
iii) The property was recently stolen from the complainants.”
PW1 testified that he was robbed off a phone with its battery. It is this battery that we are told was recovered from the appellant’s home.
On recovery several questions arise:
a) How did PW1 or PW3 identify the alleged battery given that there are no unique identifying features alluded to in their testimonies?
b) Who and by what power led the alleged search into recovery of the alleged battery.
The appellant submits that the alleged recovery was thus in violation of the appellant’s right to privacy (provided under Article 31 of the Constitution of Kenya 2010) and hence unprocedural.
The absence of search warrant hence renders the entire evidence of recovery inadmissible in line with Article 50(4) of the Constitution which states thus:” Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”.
Once recovery falls, then the entire story lacks corroboration on the aspect of fraudulent loss of PW1’s property, and the entire narrative mutates from robbery to assault, given that there was no eye-witness to alleged robbery.
In line with Section 124 of the Evidence Act, the appellant was not liable to be prosecuted on a charge of robbery with violence as the same lacks corroboration
In John Muiruri Vs Republic 1983 KLR 445 the court ruled thus:
“In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.”
Whether the medical evidence was inadmissible
PW2, Corazon Cherop, testifies as to being a clinical officer attached to Kukuyuni Health centre. PW2 presents medical evidence (P3 Form) related to alleged injuries meted on PW1. She testifies us to filling the P3 form. However, the same bears the stamp of Kangundo Level IV Hospital despite fact that PW2 does testify as to working at Kakuyuni and not Kangundo Level IV Hospital. These facilities are different. Further, the P3 form does not bear the identity the maker.
The appellant submit that the medical evidence presented by PW2 is inadmissible on the light of Sections 48, 50 as well as Section 77 of the Evidence Act.
On sentencing, the appellant mitigated thus: that he has no parents and or siblings. The appellant submits that the learned trial magistrate erred in law by finding that Section 296(2) of the Penal Code carries a mandatory death sentence.
The mandatory nature of death sentence for robbery with violence convicts has since been ruled unconstitutional in the case of Shaban Salim Ramadhan & 8 Others v Attorney General & another Petition No. 5 Of 2022) & Constitutional Petition No. 6 of 2022 Consolidated 2024 at Mombasa
On the other hand, the aggravating factors in this case needed to be balanced with mitigation in line with Section(s) 216 and 329 of the Criminal Procedure Code.
The death sentence meted on the appellant is not only dehumanizing. but also cruel and degrading punishment in violation of Article 25(a) of the Constitution of Kenya 2010.
Respondent submissions
In order to prove an offence of robbery with violence one has to prove robbery and violence and thus prove;
a) Theft
b) Use of or threat to use actual violence
c) Identity of the perpetrator
Theft, PWI states that the Appellant attacked him and when his neighbour came to his rescue the Appellant ran away. PW1 states “ I had money in my pocket. I found my money missing, my phone was taken too... my phone was not found he placed my battery in his phone I saw them when he was arrested.” This proves that items were stolen during the incident.
Use of or threat to use actual violence. PW1 states he was strangled by the Appellant. When he stepped out the Appellant held him by his neck and he lost consciousness. PW2 the clinical officer while referring to Pext. 1 testified that PW1 has soft tissue injuries in the mouth. This proves that there was use of actual force during the incident and the complainants suffered injuries during the incident.
Identity of the perpetrator. PWI states he saw the Appellant as there was lights were on. His neighbour PW3 further stated that the security lights of PW1 home were on. He then saw the Appellant open PW1 home. When he went to PWI home he found him bleeding from his mouth. He and others then went to arrest the Appellant. They found the Appellant with the same clothes he had put in with. They arrested the Appellant at his house. identification was by recognition which is the best form of identification thus this ingredient was proved.
Defence. The Appellant tendered sworn evidence. He denies the offence. He states that he did not rob the complainant. He states he had a disagreement with PW3 and thus PW3 told PWI that he had attacked him which was not true. He further stated that he rejected PW3 statement and his testimony The Appellant's defence was an afterthought and none of the issues he raises in his defence were raised during the prosecution case and more so during cross examination of the prosecution witnesses.
On sentencing, the Appellant was sentenced to death on 15th September, 2025, The prosecution stated he was a 1st offender. The Appellant in mitigation stated that he lives alone, he has no parents or siblings. The trial court thereafter ordered for a pre-sentencing report.
Section 296 (2) provides that: “if the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more other person or persons or if at or immediately before or immediately after the time of the robbery he wounds, strikes or uses any other personal violence to any person he shall be sentenced to death.”
The lawful sentence for offence of robbery with violence is death sentence.
Issue
1. Whether the ingredients of the offence were proved.
Analysis
This being a first appeal, I am required to re-evaluate the evidence afresh, make my own findings and draw my own conclusions while giving allowance for the fact that I neither saw nor heard the witnesses (Okeno v Republic [1972] EA 32).
Section 295 of the Penal Code defines robbery. Section 296(2) provides:
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
The ingredients of the offence were set out by the Court of Appeal in Oluoch v Republic [1985] KLR 549 They are to be read disjunctively. Proof of theft coupled with any one of the three circumstances (being armed, being in company, or use of personal violence) is sufficient to sustain a conviction.
There is no dispute that PW1 was assaulted. The medical evidence supports that fact. There is also evidence that PW1 lost property during the incident. The main issue is whether the prosecution proved beyond reasonable doubt that the Appellant was the person who robbed and assaulted PW1.
The critical issue in this appeal is identification. Although both PW1 and PW3 claimed to recognise the Appellant as a neighbour, the circumstances raise serious doubts. The incident occurred at night at approximately 7.00 p.m. PW1 lost consciousness almost immediately. The opportunity for reliable observation was therefore limited. PW3’s identification was made from a distance as a person left the house and entered a maize plantation. No description of distinctive clothing or features was given at the earliest opportunity.
The record does not sufficiently establish the nature, intensity or position of the light relied upon by PW1 and PW3. There is no detailed evidence concerning the distance between the witnesses and the alleged assailant, the duration for which PW1 observed him, or the precise circumstances under which PW3 allegedly saw him leave the house.
Alleged recovery and recent possession
The recovery of a phone battery from the Appellant’s house is equally problematic. No unique identifying marks were established. The search appears to have been conducted without a warrant. The doctrine of recent possession requires positive proof that the item found is the identical property stolen from the complainant
In the case of Isaac Ng’ang’a Kahiga & Another vs Republic (2005)eKLR the court ruled thus on the Doctrine of recent possession:” it is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.” In other words,” there must be positive proof that:
i) The property was found with the suspect; and
ii) The property is positively the property of the complainants; and
iii) The property was recently stolen from the complainants.”
The prosecution sought to connect the Appellant to the robbery through the recovery of a phone and/or battery from his house. However, the evidence on this important issue is materially uncertain.
PW5 testified that a phone was recovered from the Appellant's house but that the complainant did not identify the phone as his. According to PW5, the complainant only identified the battery as belonging to him. PW5 also acknowledged that he did not know to whom the phone belonged.
This evidence does not establish with sufficient certainty that the alleged battery was uniquely identifiable as the complainant's property. There was no evidence of a serial number, distinctive mark, receipt, photograph or other identifying feature capable of positively connecting the battery to PW1.
The fact that the battery could fit or be used in PW1's phone does not, without more, prove ownership.
Therefore, I find that the doctrine of recent possession was not available to the prosecution as a basis for sustaining the conviction.
Defence
The Appellant raised a defence of framing arising from a personal dispute with PW3. While the defence was not elaborately particularized during cross-examination of the prosecution witnesses, it introduces a possible motive for false implication that the prosecution did not displace.
When the evidence of recognition is examined against the caution required in cases of visual identification, and when the weaknesses in the recovery of the battery are considered, I am left with a reasonable doubt as to whether the Appellant was the person who attacked and robbed the complainant.
Cleophas Otieno Wamunga v Republic, (1989) KLR 424, in the following words: -
“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.
The Court must approach the identification evidence with caution. It is not sufficient that the witnesses knew the Appellant beforehand. The prosecution must still establish that the circumstances of the recognition were such that the witnesses could safely identify him as the person who committed the offence.
The difficulty is compounded by the evidence concerning the allegedly recovered property.
The prosecution bore the burden of proving the case beyond reasonable doubt. That burden has not been discharged. The conviction is unsafe.
It is for the above reason I find that the appeal is meritorious. The appeal therefore succeeds. The appellant should therefore be released, unless lawfully held.
It is so ordered.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANT