1. Being dissatisfied with the judgment, the appellant lodged a memorandum of appeal and later an amended petition, which is hereby admitted by the court.
2. He raises the following ground of appeal
3. He argues that he was denied the right to a fair hearing is guaranteed and not of a constitution. He advances this Ground because he believes that the trial coordinate inform him of his right to cancel given the nature of the offense that he was faced with.
4. It is further, his case that he will deny the chance to present his case. He argues that he was arrested separately he was sick and he was not able to represent himself adequately.
5. in advancing his second ground of appeal that apparent advances the argument that on 4 of July 2021 he had his breakfast and then went to his place of work, then came back home at 2 PM there after he argues that he was arrested on 7 July 2021 and he was not told why he was being arrest arrested until later on when he was told that an offense of robbery ballots have been committed. The prosecution, according to him failed to tender evidence to identify him or connect him with the offense. He’s his case that their offense was committed at night, and the circumstances were not favorable for the positive identification of their appetite. The PW one is that on the material that he was writing in a car when a motorbike followed them with two Man with Cop. He told the driver to stop and he Light and he at that point that he was attacked by the assailant and he did not tell our report to the police who they did not describe them did not produce any evidence whatsoever to link the appeal to the offense.
6. It is his Case that according to the nature of the offense and section 296 of the Penal code he ought to have been positively identified. He was not.
7. Further, he argues that no identification parade was conducted, making their identification unsafe.
8. Argues that he was not described by the fast report in the OB. He further argues that the source of the light was not given by the prosecution in the trial. Magistrate fell into era when she convicted him of the capital offense. Reliance is placed in the case of Anjononi Vs Republic [1980] KLR 59 As Per Madam (Ja) where it was held that,;-
"More satisfactory, more assuring and more reliable than identification of a stranger it depends upon the personal knowledge of the assailant in some form or other. "
9. My lord, it is very important for this court to know that the witness did not give any description of his attackers to police. And their first report reveal that he did not know his attackers as per the first OB. This is the matter of the mistaken identity. In the case of Justice Platt, Gachuian Apaloo J.J.A in the case of Moses Monyua Mucheru Verse REP. Cr App. No 63 of 1987 CA unanimously held that;
In the matter of identification, the first report to the police should be put in evidence so as to check whether or not a witness thinks he or she can identify the suspects and by what means:
10. The upshot above demonstrates of how the learned magistrate depicted an extract scrutiny had the learned trial magistrate came out with his own findings upon thorough scrutiny, in nutshell the issue of the identification still leaves a lot to be decided as to whether it was really positive given the circumstances surrounding the commission of the attack.
11. On another ground he submits that There is contradiction and discrepancies in prosecution case:
My lord, it is my humble submissions that the complainants in this case gave contradicted evidence on the part of the charge and the evidence tendered. He told the court that he was attacked by Ovo people each have a panga. He charged again that the panga was one. And it has a rubber handle sharpened both side. The panga produced has a timber handle. It was one side sharpened. He stated he does not know his attackers in his statement. But narrated before court that he knew them. The panga was not recovered in my possession. PW 1 's evidence is not credible and unreliable. My conviction is un safe. Prosecution therefore had failed to prove the charge beyond any reasonable doubt.
12. My lord, I Feel I was not accorded a fair trial as accused person contrary to article 50 (2)(g) of the constitution and section 150 of the C.P.C. That the trial magistrate failed to comply with section 169 of the C.P.C. that is why I appealed against the case before the court. My lord I humbly and strongly contend that the burden or onus of prove always remains on the prosecution throughout the proceedings as held in the case of WILMINGTON VRS D.P.P (A. C 462, held that; Throughout the web of English criminal law, one golden tread is always to be seen that it is the duty of the prosecution to prove the prisoner guilty. In fact the end of the whole case these appear any reasonable doubt created by the evidence brought forward by the prosecution, the prosecution has not proved its case and prisoner is entitled to an acquittal.it is not for the prisoner to establish his innocence' the prisoner is merely required to cause doubt as to his guilty. In either case, he is entitled to the benefits of doubt.
13. He urges that this being a first appeal, this court as the matter of the law and facts are enjoined to analyze and re- evaluate the evidence brought before it and comes up with its own independent conclusion kindly as guided by the case of OKENO VRS REPUBLIC 1972 EA 32, 'Where court of appeal set out the duty of the first appellate court as follows; it must weigh the evidence to be submitted as a fresh and exhausted examination and comes up with own conclusion other than the one of the trial court.
14. Informed by the foregoing submissions he argues that it is clear that the evidence was insufficient to warrant conviction. He calls upon this court to intervene and make a finding that there is no reason for upholding the conviction and the sentence imposed upon him.
Analysis and determination;
15. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.
16. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court 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 vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 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 finding and 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 vs Sunday Post [1958]EA424.” This was also set out in the case of Kiilu& Another vs Republic [2005] KLR 174.
17. In the instant case, the applicant was charged with under Section 296(2) of the penal code which provides that:
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
18. The applicant was sentenced to death. This court has the duty to reevaluate the evidence in order to satisfy itself whether the prosecution proved its case beyond reasonable doubt or whether the conviction and sentence should be upheld or set aside.
19. In so doing, this court will start by addressing its mind to the issue of identity.
20. In the case of Republic-Vs-Turnbull [1976] 3 All Er.459 quoted by the learned Judges, the careful enquiry that the court ought to conduct on the issue of identification is;
“...the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused?" (Our emphasis)
21. That evidence of identity was not corroborated.
22. The police should have conducted a n identification parade so as to buttress the issue of the identification of the appellant.
23. according to the nature of the offense and section 296 of the Penal code he ought to have been positively identified. He was not.
On the issue of contradictions in the testimony
24. The appellant argued that the prosecution case was riddled with contradictions.
25. The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:-
"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis ours).
26. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal held that only material contradictions which go to the root of the prosecution case are capable of vitiating a conviction.
27. The duty of the court is to determine whether the alleged inconsistencies relate to material particulars touching on the essential ingredients of the offence or whether they are merely peripheral matters that do not affect the credibility of the prosecution case.
28. In the present case, the contradictions pointed out by the appellant relate to the weapon used.
29. The nature of the offense is such that the prosecution ought to have proved that the appellant was armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons.
30. The complainant’s definition of the panga used to commit the offense is self-defeating. The texture of the handle is not water tight. The fact that it was not clear whether it was sharpened on one or both sides is unclear.
31. In any event given that the offence was committed under the cover of darkness, the court was not told how the complainant could see the weapon uses leave alone the features of the panga. This lapse and the inconsistency made the prosecution case weak. The doubts created there in must go to the benefit of the appellant.
32. The inconsistencies weakened and discredited the prosecution's evidence on the elements of the offence. They created uncertainty as to the occurrence of the offence, the weapon and the identity of the offender.
33. Having examined the entire record, I find that the discrepancies relied upon by the appellant have sufficiently cast doubt on the evidence tendered by the prosecution.
34. On another front, the appellant argues his right to fair hearing under Article 50 of The Constitution was taken away during the trial since the court failed to inform him of his right to legal counsel given the gravity of the offence he was charged with.
35. 66. In Republic vs Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that;
“In accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.
36. From the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution.
37. The right to counsel is not an automatic entitlement to persons charged with the offence of robbery with violence.
38. In any event the appellant fails to demonstrate the prejudice that he suffered if any.
39. This ground lacks merit.
Determination;
40. The court is satisfied that the prosecution failed to prove its case beyond reasonable doubt. The appeal has merit.
Order;
a) The appeal against conviction is hereby allowed.
b) The conviction is hereby quashed.
c) The sentence imposed upon the appellant is hereby set aside.
d) The appellant, us hereby set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
Dated, Signed and Delivered Virtually at Eldoret this 29th day of July, 2026
2. He raises the following ground of appeal
3. He argues that he was denied the right to a fair hearing is guaranteed and not of a constitution. He advances this Ground because he believes that the trial coordinate inform him of his right to cancel given the nature of the offense that he was faced with.
4. It is further, his case that he will deny the chance to present his case. He argues that he was arrested separately he was sick and he was not able to represent himself adequately.
5. in advancing his second ground of appeal that apparent advances the argument that on 4 of July 2021 he had his breakfast and then went to his place of work, then came back home at 2 PM there after he argues that he was arrested on 7 July 2021 and he was not told why he was being arrest arrested until later on when he was told that an offense of robbery ballots have been committed. The prosecution, according to him failed to tender evidence to identify him or connect him with the offense. He’s his case that their offense was committed at night, and the circumstances were not favorable for the positive identification of their appetite. The PW one is that on the material that he was writing in a car when a motorbike followed them with two Man with Cop. He told the driver to stop and he Light and he at that point that he was attacked by the assailant and he did not tell our report to the police who they did not describe them did not produce any evidence whatsoever to link the appeal to the offense.
6. It is his Case that according to the nature of the offense and section 296 of the Penal code he ought to have been positively identified. He was not.
7. Further, he argues that no identification parade was conducted, making their identification unsafe.
8. Argues that he was not described by the fast report in the OB. He further argues that the source of the light was not given by the prosecution in the trial. Magistrate fell into era when she convicted him of the capital offense. Reliance is placed in the case of Anjononi Vs Republic [1980] KLR 59 As Per Madam (Ja) where it was held that,;-
"More satisfactory, more assuring and more reliable than identification of a stranger it depends upon the personal knowledge of the assailant in some form or other. "
9. My lord, it is very important for this court to know that the witness did not give any description of his attackers to police. And their first report reveal that he did not know his attackers as per the first OB. This is the matter of the mistaken identity. In the case of Justice Platt, Gachuian Apaloo J.J.A in the case of Moses Monyua Mucheru Verse REP. Cr App. No 63 of 1987 CA unanimously held that;
In the matter of identification, the first report to the police should be put in evidence so as to check whether or not a witness thinks he or she can identify the suspects and by what means:
10. The upshot above demonstrates of how the learned magistrate depicted an extract scrutiny had the learned trial magistrate came out with his own findings upon thorough scrutiny, in nutshell the issue of the identification still leaves a lot to be decided as to whether it was really positive given the circumstances surrounding the commission of the attack.
11. On another ground he submits that There is contradiction and discrepancies in prosecution case:
My lord, it is my humble submissions that the complainants in this case gave contradicted evidence on the part of the charge and the evidence tendered. He told the court that he was attacked by Ovo people each have a panga. He charged again that the panga was one. And it has a rubber handle sharpened both side. The panga produced has a timber handle. It was one side sharpened. He stated he does not know his attackers in his statement. But narrated before court that he knew them. The panga was not recovered in my possession. PW 1 's evidence is not credible and unreliable. My conviction is un safe. Prosecution therefore had failed to prove the charge beyond any reasonable doubt.
12. My lord, I Feel I was not accorded a fair trial as accused person contrary to article 50 (2)(g) of the constitution and section 150 of the C.P.C. That the trial magistrate failed to comply with section 169 of the C.P.C. that is why I appealed against the case before the court. My lord I humbly and strongly contend that the burden or onus of prove always remains on the prosecution throughout the proceedings as held in the case of WILMINGTON VRS D.P.P (A. C 462, held that; Throughout the web of English criminal law, one golden tread is always to be seen that it is the duty of the prosecution to prove the prisoner guilty. In fact the end of the whole case these appear any reasonable doubt created by the evidence brought forward by the prosecution, the prosecution has not proved its case and prisoner is entitled to an acquittal.it is not for the prisoner to establish his innocence' the prisoner is merely required to cause doubt as to his guilty. In either case, he is entitled to the benefits of doubt.
13. He urges that this being a first appeal, this court as the matter of the law and facts are enjoined to analyze and re- evaluate the evidence brought before it and comes up with its own independent conclusion kindly as guided by the case of OKENO VRS REPUBLIC 1972 EA 32, 'Where court of appeal set out the duty of the first appellate court as follows; it must weigh the evidence to be submitted as a fresh and exhausted examination and comes up with own conclusion other than the one of the trial court.
14. Informed by the foregoing submissions he argues that it is clear that the evidence was insufficient to warrant conviction. He calls upon this court to intervene and make a finding that there is no reason for upholding the conviction and the sentence imposed upon him.
Analysis and determination;
15. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.
16. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court 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 vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 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 finding and 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 vs Sunday Post [1958]EA424.” This was also set out in the case of Kiilu& Another vs Republic [2005] KLR 174.
17. In the instant case, the applicant was charged with under Section 296(2) of the penal code which provides that:
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
18. The applicant was sentenced to death. This court has the duty to reevaluate the evidence in order to satisfy itself whether the prosecution proved its case beyond reasonable doubt or whether the conviction and sentence should be upheld or set aside.
19. In so doing, this court will start by addressing its mind to the issue of identity.
20. In the case of Republic-Vs-Turnbull [1976] 3 All Er.459 quoted by the learned Judges, the careful enquiry that the court ought to conduct on the issue of identification is;
“...the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused?" (Our emphasis)
21. That evidence of identity was not corroborated.
22. The police should have conducted a n identification parade so as to buttress the issue of the identification of the appellant.
23. according to the nature of the offense and section 296 of the Penal code he ought to have been positively identified. He was not.
On the issue of contradictions in the testimony
24. The appellant argued that the prosecution case was riddled with contradictions.
25. The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:-
"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis ours).
26. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal held that only material contradictions which go to the root of the prosecution case are capable of vitiating a conviction.
27. The duty of the court is to determine whether the alleged inconsistencies relate to material particulars touching on the essential ingredients of the offence or whether they are merely peripheral matters that do not affect the credibility of the prosecution case.
28. In the present case, the contradictions pointed out by the appellant relate to the weapon used.
29. The nature of the offense is such that the prosecution ought to have proved that the appellant was armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons.
30. The complainant’s definition of the panga used to commit the offense is self-defeating. The texture of the handle is not water tight. The fact that it was not clear whether it was sharpened on one or both sides is unclear.
31. In any event given that the offence was committed under the cover of darkness, the court was not told how the complainant could see the weapon uses leave alone the features of the panga. This lapse and the inconsistency made the prosecution case weak. The doubts created there in must go to the benefit of the appellant.
32. The inconsistencies weakened and discredited the prosecution's evidence on the elements of the offence. They created uncertainty as to the occurrence of the offence, the weapon and the identity of the offender.
33. Having examined the entire record, I find that the discrepancies relied upon by the appellant have sufficiently cast doubt on the evidence tendered by the prosecution.
34. On another front, the appellant argues his right to fair hearing under Article 50 of The Constitution was taken away during the trial since the court failed to inform him of his right to legal counsel given the gravity of the offence he was charged with.
35. 66. In Republic vs Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that;
“In accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.
36. From the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution.
37. The right to counsel is not an automatic entitlement to persons charged with the offence of robbery with violence.
38. In any event the appellant fails to demonstrate the prejudice that he suffered if any.
39. This ground lacks merit.
Determination;
40. The court is satisfied that the prosecution failed to prove its case beyond reasonable doubt. The appeal has merit.
Order;
a) The appeal against conviction is hereby allowed.
b) The conviction is hereby quashed.
c) The sentence imposed upon the appellant is hereby set aside.
d) The appellant, us hereby set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
Dated, Signed and Delivered Virtually at Eldoret this 29th day of July, 2026