1. Joseph Kamau Mbugua and Stephen Maina Mwangi, the 1 st and 2 nd Appellants respectively, were jointly charged with the offence of Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of the offence were that on 21 st January, 2019, at Subukia Trading Centre, the Appellants jointly robbed Geoffrey Mwangi a mobile phone make Infinix valued at Kshs.9,000/- and cash Kshs.2,000/- and immediately after, used actual violence on him.
2. They were taken through full trial, convicted and sentenced to suffer death.
3. Dissatisfied with the conviction and sentence, the Appellant’s appeals on grounds as follows;
1) That the learned trial Magistrate erred in law and fact by upholding conviction and sentence of death on evidence of identification by PW1, but failed to note that the circumstances were too difficult for positive identification and there was no advance report on this identification made to the police.
2) That the learned trial Magistrate erred in law and fact in failing to consider the new jurisprudential developments and instead awarded a sentence of death which was harsh and excessive in the circumstances.
3) That the learned trial Magistrate erred in law and fact confirming the conviction and sentence of death but failed to evaluate conclusively the defence of alibi alongside the prosecution evidence.
4. Briefly, facts of the case were that on 21 st January, 2019, Geoffrey Mwangi, the Complainant was on his way home when he saw two (2) people and upon reaching home he saw them waiting for him with aid of moonlight and he recognized them as Karis and Tony. The two accosted him, assaulted and took his cellphone, make Infinix valued at Kshs.9,000/- and cash Kshs.2,000/- then fled.
5. He reported the matter to the police who escorted him back to the scene of the incident where they recovered his wallet, driving licence and work identification card.
6. Following information received, the Appellants were arrested.
7. Upon being placed on their defence, both Appellants denied the charges. The 1 st Appellant denied knowing the Co-Accused. He stated that he knows both the Complainant and the police officer but urged that he was arrested for not having an identity card and arraigned in court.
8. The 2 nd Appellant also denied knowing his Co-Accused, the 1 st Appellant. He said that he resides in Nakuru. That he was called by his mother in-law who informed him that his daughter was sick. Therefore, he went to Subukia and found her sick. At 4.00am he heard gunshots and they were ordered to go out. The officers broke into the house. He was arrested and taken to the police station and charged with the offence.
9. The appeal was disposed through written submissions. It is submitted by both Appellants that the conviction was based on single identification witness, the victim, which was not positive. That the witness said there was moonlight that enabled him to recognize the assailants but he did not state the intensity of the moonlight. Reliance was placed on the case of Joseph Ngumbao Nzalo v Republic [1991] 2 KAR where the court stated that;
“A careful direction regarding the conditions prevailing at the time of identification and the witness had the accused person under observation together with the need to exclude the possibility of error was essential.”
10. Secondly, it is submitted that the sentence imposed was harsh in the circumstances whereby reliance is placed on the case of Dismas Kilwake v Republic [2019] eKLR where the court stated that;
“….the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence.
This being a judicial function, it is impermissible for the legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence…”
11. The State/Respondent did not file submissions.
12. This being a first appellate court, it is duty bound to re-examine evidence adduced at trial and scrutinize the findings bearing in mind that it did not have the opportunity of seeing or hearing witnesses to assess their demeanour, then form its independent conclusions. This, was summed up in Okeno v Republic (1972) EA 32 thus;
“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.”
13. The offence of Robbery with violence is created by Section 295 of the Penal Code which provides thus;
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
14. The penalty section is provided by Section 296(2) of the Penal Code that provides thus;
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.
15. The ingredients were summed up in the case of Oluoch v Republic [1985] KLR where the Court of Appeal stated that;
“Under section 296(2) of the Penal Code, robbery with violence is committed in any of the following circumstances;
1. The offender is armed with any dangerous or
offensive weapon or instrument.
2. The offender is in company with 1 or more person
or persons, or,
3. At or immediately before or immediately after the
time of the robbery, the offender wounds, beat
strikes or uses other personal violence to any
person”
16. In Dima Denge Dima & Another v Republic [2025] KECA 1206 (KLR) the Court of Appeal stated that;
“The elements of the offense under Section 296(2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offense of robbery with violence....”
17. The Complainant, PW1 stated that he was accosted by two (2) people who punched him. He fell down and they took his cellphone, Infinix valued at Kshs.9,000/- and cash Kshs.2,000/-. He proceeded to report the matter to the police.
18. Evidence as evaluated demonstrates the fact of the offenders having been two. And further, the assailants having used violence on his person immediately before taking of the property.
19. The major contention in the matter is the question of identification by a single witness. In S v Webber 1971(3) SA 571(A) the court held that;
“A conviction is possible on the evidence of a single witness. Such witness must be credible, and the evidence should be approached with caution. Due consideration should be given to factors which affirm, and factors which detract from the credibility of the witness. The probative value of the evidence of a single witness should also not be equated with that of several witnesses”.
20. In S v Sauls & Others 1981(3) SA 172(A) the Appellate Division of South Africa held that;
“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial Judge will weigh his evidence, will consider the merits and demerits and having, done so, will decide whether it is trustworthy and whether, despite, the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.”
21. In Roria v Republic [1967] EA 583, the court stated that;
“A conviction resting entirely on identity invariably causes a degree of uneasiness.....
That danger is, of course, greater when the only evidence against an Accused Person is identification by one witness and although no one would suggest that conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all circumstance it is safe to act on such identification.”
22. This was a case of visual identification at night by recognition since the victim stated that he saw two (2) people that he could recognize who use nicknames Karis and Tony. In Anjononi v Republic [1976 – 1970] eKLR the Court of Appeal stated that;
“….Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”
23. The Complainant stated that he could identify both Appellants as moonlight enabled him to see them and there was also light from the torch that was illuminated by Karis. On cross – examination he stated that he knew them very well as the nuclear family of the 1 st Appellant while he also knows the brother of the 2 nd Appellant, people who stay in the same neighbourhood with him. He admitted that his written statement to the police did not mention the names of the Appellants. He also denied knowing how they were arrested.
24. The victim described circumstances under which he could recognize the Appellants namely familiarity whether or not they are the individuals he saw on the material night could only have been within his knowledge as he did not state how good the lighting was.
25. He alleged that upon reporting the incident to the police he was escorted to the scene by the police and his wallet, driving licence and national Identification Card were recovered, items that did not form part of the evidence.
26. PW2 the Investigation Officer stated that he recorded a statement from PW1 on 21 st January, 2019. That the Complainant knew his attackers as he was strangled by the 1 st Appellant and the 2 nd Appellant took his cellphone and money. That on 9 th May, 2019, he arrested the 1 st Appellant following a tip off while the 2 nd Appellant was arrested later on.
27. On cross – examination by the 1 st Appellant he said that he was identified by the Complainant and was arrested while having supper at his home. That there was no need for conducting an identification parade since the Complainant said he knew him since childhood and he had a red jumper. That the 2 nd Appellant was found at his brother’s house. He was found without anything. He confirmed that their names were not recorded in the witness statement.
28. In convicting the Appellants, the learned trial Magistrate opined that the Investigating Officer was in company of the victim at the time of arrest. Yet the victim stated that the Appellants were arrested at different times and the one he saw at the station was the 2 nd Appellant. On cross – examination, he denied knowing how he was arrested.
29. The evidence by PW2 on how the Appellants were arrested is materially contradicted by that of PW1 which leads to the question as to how the Investigating Officer knew they were the assailants yet he did not testify to have known them previously.
30. It is also surprising that the Appellants were people known to the victim yet their names did not feature in the statement recorded.
31. PW1 also alluded to have encountered one Gichenya who allegedly said that he had been robbed by the same people who was not mentioned by PW2.
32. The trial court opined that when the Appellants were placed on their defence they chose to give unsworn evidence which is of little probative value and they did not address themselves to the direct evidence given by the Complainant of recognition and the police officer. In a criminal case the duty of proving the case lies with the prosecution and not the defence/Accused and the standard of proof is beyond reasonable doubt. The Accused person remains innocent until proven otherwise (See Article 50(2)(a) of the Constitution).
33. In Woolmington v DPP [1935] AC it was held that;
“Throughout the web of English criminal law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoners’ guilt (subject to the defence of insanity and subject to any statutory exception) no matter what or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
34. It behooved the prosecution to prove the case beyond reasonable doubt. Evidence on record as analyzed was full of discrepancies which left some gaps unanswered. The doubts should have been resolved in favour of the Appellant.
35. For reasons given, the appeal is merited and it is allowed. The conviction is quashed and sentenced meted out set aside. The Appellants shall be released forthwith unless otherwise lawfully held.
36. It is so ordered.
HCCRA E004 OF 2025 (JUDG.) Page 2 of 2
2. They were taken through full trial, convicted and sentenced to suffer death.
3. Dissatisfied with the conviction and sentence, the Appellant’s appeals on grounds as follows;
1) That the learned trial Magistrate erred in law and fact by upholding conviction and sentence of death on evidence of identification by PW1, but failed to note that the circumstances were too difficult for positive identification and there was no advance report on this identification made to the police.
2) That the learned trial Magistrate erred in law and fact in failing to consider the new jurisprudential developments and instead awarded a sentence of death which was harsh and excessive in the circumstances.
3) That the learned trial Magistrate erred in law and fact confirming the conviction and sentence of death but failed to evaluate conclusively the defence of alibi alongside the prosecution evidence.
4. Briefly, facts of the case were that on 21 st January, 2019, Geoffrey Mwangi, the Complainant was on his way home when he saw two (2) people and upon reaching home he saw them waiting for him with aid of moonlight and he recognized them as Karis and Tony. The two accosted him, assaulted and took his cellphone, make Infinix valued at Kshs.9,000/- and cash Kshs.2,000/- then fled.
5. He reported the matter to the police who escorted him back to the scene of the incident where they recovered his wallet, driving licence and work identification card.
6. Following information received, the Appellants were arrested.
7. Upon being placed on their defence, both Appellants denied the charges. The 1 st Appellant denied knowing the Co-Accused. He stated that he knows both the Complainant and the police officer but urged that he was arrested for not having an identity card and arraigned in court.
8. The 2 nd Appellant also denied knowing his Co-Accused, the 1 st Appellant. He said that he resides in Nakuru. That he was called by his mother in-law who informed him that his daughter was sick. Therefore, he went to Subukia and found her sick. At 4.00am he heard gunshots and they were ordered to go out. The officers broke into the house. He was arrested and taken to the police station and charged with the offence.
9. The appeal was disposed through written submissions. It is submitted by both Appellants that the conviction was based on single identification witness, the victim, which was not positive. That the witness said there was moonlight that enabled him to recognize the assailants but he did not state the intensity of the moonlight. Reliance was placed on the case of Joseph Ngumbao Nzalo v Republic [1991] 2 KAR where the court stated that;
“A careful direction regarding the conditions prevailing at the time of identification and the witness had the accused person under observation together with the need to exclude the possibility of error was essential.”
10. Secondly, it is submitted that the sentence imposed was harsh in the circumstances whereby reliance is placed on the case of Dismas Kilwake v Republic [2019] eKLR where the court stated that;
“….the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence.
This being a judicial function, it is impermissible for the legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence…”
11. The State/Respondent did not file submissions.
12. This being a first appellate court, it is duty bound to re-examine evidence adduced at trial and scrutinize the findings bearing in mind that it did not have the opportunity of seeing or hearing witnesses to assess their demeanour, then form its independent conclusions. This, was summed up in Okeno v Republic (1972) EA 32 thus;
“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.”
13. The offence of Robbery with violence is created by Section 295 of the Penal Code which provides thus;
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
14. The penalty section is provided by Section 296(2) of the Penal Code that provides thus;
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.
15. The ingredients were summed up in the case of Oluoch v Republic [1985] KLR where the Court of Appeal stated that;
“Under section 296(2) of the Penal Code, robbery with violence is committed in any of the following circumstances;
1. The offender is armed with any dangerous or
offensive weapon or instrument.
2. The offender is in company with 1 or more person
or persons, or,
3. At or immediately before or immediately after the
time of the robbery, the offender wounds, beat
strikes or uses other personal violence to any
person”
16. In Dima Denge Dima & Another v Republic [2025] KECA 1206 (KLR) the Court of Appeal stated that;
“The elements of the offense under Section 296(2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offense of robbery with violence....”
17. The Complainant, PW1 stated that he was accosted by two (2) people who punched him. He fell down and they took his cellphone, Infinix valued at Kshs.9,000/- and cash Kshs.2,000/-. He proceeded to report the matter to the police.
18. Evidence as evaluated demonstrates the fact of the offenders having been two. And further, the assailants having used violence on his person immediately before taking of the property.
19. The major contention in the matter is the question of identification by a single witness. In S v Webber 1971(3) SA 571(A) the court held that;
“A conviction is possible on the evidence of a single witness. Such witness must be credible, and the evidence should be approached with caution. Due consideration should be given to factors which affirm, and factors which detract from the credibility of the witness. The probative value of the evidence of a single witness should also not be equated with that of several witnesses”.
20. In S v Sauls & Others 1981(3) SA 172(A) the Appellate Division of South Africa held that;
“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial Judge will weigh his evidence, will consider the merits and demerits and having, done so, will decide whether it is trustworthy and whether, despite, the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.”
21. In Roria v Republic [1967] EA 583, the court stated that;
“A conviction resting entirely on identity invariably causes a degree of uneasiness.....
That danger is, of course, greater when the only evidence against an Accused Person is identification by one witness and although no one would suggest that conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all circumstance it is safe to act on such identification.”
22. This was a case of visual identification at night by recognition since the victim stated that he saw two (2) people that he could recognize who use nicknames Karis and Tony. In Anjononi v Republic [1976 – 1970] eKLR the Court of Appeal stated that;
“….Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”
23. The Complainant stated that he could identify both Appellants as moonlight enabled him to see them and there was also light from the torch that was illuminated by Karis. On cross – examination he stated that he knew them very well as the nuclear family of the 1 st Appellant while he also knows the brother of the 2 nd Appellant, people who stay in the same neighbourhood with him. He admitted that his written statement to the police did not mention the names of the Appellants. He also denied knowing how they were arrested.
24. The victim described circumstances under which he could recognize the Appellants namely familiarity whether or not they are the individuals he saw on the material night could only have been within his knowledge as he did not state how good the lighting was.
25. He alleged that upon reporting the incident to the police he was escorted to the scene by the police and his wallet, driving licence and national Identification Card were recovered, items that did not form part of the evidence.
26. PW2 the Investigation Officer stated that he recorded a statement from PW1 on 21 st January, 2019. That the Complainant knew his attackers as he was strangled by the 1 st Appellant and the 2 nd Appellant took his cellphone and money. That on 9 th May, 2019, he arrested the 1 st Appellant following a tip off while the 2 nd Appellant was arrested later on.
27. On cross – examination by the 1 st Appellant he said that he was identified by the Complainant and was arrested while having supper at his home. That there was no need for conducting an identification parade since the Complainant said he knew him since childhood and he had a red jumper. That the 2 nd Appellant was found at his brother’s house. He was found without anything. He confirmed that their names were not recorded in the witness statement.
28. In convicting the Appellants, the learned trial Magistrate opined that the Investigating Officer was in company of the victim at the time of arrest. Yet the victim stated that the Appellants were arrested at different times and the one he saw at the station was the 2 nd Appellant. On cross – examination, he denied knowing how he was arrested.
29. The evidence by PW2 on how the Appellants were arrested is materially contradicted by that of PW1 which leads to the question as to how the Investigating Officer knew they were the assailants yet he did not testify to have known them previously.
30. It is also surprising that the Appellants were people known to the victim yet their names did not feature in the statement recorded.
31. PW1 also alluded to have encountered one Gichenya who allegedly said that he had been robbed by the same people who was not mentioned by PW2.
32. The trial court opined that when the Appellants were placed on their defence they chose to give unsworn evidence which is of little probative value and they did not address themselves to the direct evidence given by the Complainant of recognition and the police officer. In a criminal case the duty of proving the case lies with the prosecution and not the defence/Accused and the standard of proof is beyond reasonable doubt. The Accused person remains innocent until proven otherwise (See Article 50(2)(a) of the Constitution).
33. In Woolmington v DPP [1935] AC it was held that;
“Throughout the web of English criminal law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoners’ guilt (subject to the defence of insanity and subject to any statutory exception) no matter what or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
34. It behooved the prosecution to prove the case beyond reasonable doubt. Evidence on record as analyzed was full of discrepancies which left some gaps unanswered. The doubts should have been resolved in favour of the Appellant.
35. For reasons given, the appeal is merited and it is allowed. The conviction is quashed and sentenced meted out set aside. The Appellants shall be released forthwith unless otherwise lawfully held.
36. It is so ordered.
HCCRA E004 OF 2025 (JUDG.) Page 2 of 2