(Being an appeal from the original conviction and sentence in Criminal Case No. E215 of 2025 of the Chief Magistrate's Court at Malindi by Hon. E.K. Usui - CM, delivered on 23 rd January 2026)
A. Introduction and Background
1. Joseph Katana Karisa, was charged, tried, and convicted before the Chief Magistrate’s Court at Malindi in Criminal Case No. E215 of 2025.
2. The particulars before the trial court were that on the 22 nd March 2025 at around 1330 hours at Turtle Bay beach area in Watamu location, Kilifi North Sub-County within Kilifi County, while armed with an offensive weapon, namely a knife, he robbed Payne Catriona Mary of her waist bag containing a Samsung Galaxy A05 mobile phone, an Apple iPod, Samsung earphones, reading glasses, Kshs. 15,000 in cash, and other personal effects, and immediately before such robbery threatened to use actual violence on the said complainant.
3. He faced an alternative/subsequent count of handling stolen goods under Section 322(1) of the Penal Code.
4. After a full trial where the prosecution called four witnesses and the Appellant gave sworn defense testimony without calling witnesses, the trial court (Hon. E.K. Usui, CM) convicted him on the main charge of Robbery with Violence contrary to Section 296(2) of the Penal Code on 23rd January 2026 and sentenced him to twenty (20) years' imprisonment.
B. The Appeal and Submissions
5. Being dissatisfied with the conviction and sentence, the Appellant filed this appeal. Through his grounds of appeal and submissions, the Appellant challenges the safety of his conviction on several grounds:
(a) Ground 1: The prosecution failed to discharge its mandatory burden of proof under Sections 107, 108, and 109 of the Evidence Act, noting critically that vital physical exhibits (such as the knife, the waist bag, cash, and phones) were never produced in court by the police or prosecution.
(b) Ground 2: The trial court failed to adhere to mandatory sentencing principles and statutory requirements, specifically omitting to factor in the pre-trial incarceration period of 10 months (arrested on 22-03-2025 and held until 23-01-2026) under Section 333(2) of the Criminal Procedure Code.
(c) Ground 3 & 4: The trial court erred in rejecting his defense and failing to evaluate his sworn testimony under Section 211 of the Criminal Procedure Code (recorded at Page 15 Lines 19 to 24 of the Record of Appeal), where he maintained that he was arrested in Watamu, did not know the complainant, was not subjected to an identification parade, and faced fabricated charges.
6. The Respondent, filed written submissions on 24 th June 2026 opposing the appeal:
On Evidence and Identification:
7. The Respondent maintained that the evidence adduced by the four prosecution witnesses was cogent, consistent, and corroborative, proving all elements of the offense beyond reasonable doubt. Citing Richard Munene v. Republic [2018] eKLR and Erick Onyango Odeng’ v. Republic [2014] eKLR , the Respondent urged that minor discrepancies do not invalidate a case unless they touch on fundamental elements or point to deliberate untruthfulness.
On Police Investigations and Defense:
8. The Respondent contended that the police investigation was robust enough to sanction charges and that the Appellant's testimony failed to raise a proper alibi or dislodge the watertight prosecution case.
On Recent Possession:
9. The Respondent relied on the doctrine of recent possession as set out in R v. Harris and Paul Mwita Robi v. Republic, asserting that the swift tracking and recovery of the stolen items shortly after the daytime attack anchored an unassailable presumption of guilt.
3. Duty of the First Appellate Court
10. As this is a first appeal, this Court is acutely mindful of its duty as set out in the locus classicus Okeno v. Republic [1972] EA 32 and further affirmed in Mark Oiruri Mose v. R [2013] eKLR , which is to re-evaluate, reassess, and analyze the entire trial record afresh to reach its own independent conclusion, while keeping in mind that it neither saw nor heard the witnesses testify and therefore must give due allowance for that limitation.
4. Analysis and Determination of Evidence on Record
11. I have meticulously perused the lower court record, the grounds of appeal, and the comprehensive written submissions filed by both parties. The issues for determination centre on whether the charge of robbery with violence was proved beyond reasonable doubt based on the evidence tendered at trial.
The Prosecution Evidence:
12. PW1 (Mtawali Ngayi): An operational manager at Watamu Against Crime organization testified that he received a report on 22/03/2025 regarding the robbery. Along with tourist police, they tracked the signal of the stolen mobile phone along the beach, intercepted a motorcycle carrying the suspect (the Appellant), conducted a search on the pillion passenger, recovered the lost items, verified ownership by calling the number which rang, and arrested him.
13. PW2 (Sgt. Omar Mohammed): A police officer stationed at Tourist Police Watamu confirmed receiving the report from PW1, tracking the phone, arresting the Appellant, and recovering the stolen items which were later identified by the complainant.
14. PW3 (Florian Biziere): The manager at Ocean Sports Hotel Watamu testified that he was informed of a guest being robbed, notified Watamu Against Crime, and drove police officers while tracking the phone in his car, leading to the recovery of items from the Appellant and his subsequent arrest.
15. PW4 (Catriona Mary, the Complainant): Testified that on 22/03/2025 at around 1:30 PM while walking along Turtle Bay beach at Ocean Sports Hotel Watamu, an individual emerged from her left hand side, ran behind her, put a big knife to her throat, threatened to kill her, and cut her waist bag off containing a Samsung Galaxy A05, an Apple iPod, Samsung earphones, reading glasses, Kshs. 13,000/15,000 in cash, and spectacles. She later identified the recovered items and clothes worn by the Appellant at the police station.
The Defense Evidence:
16. Placed on his defense pursuant to Section 211 of the Criminal Procedure Code, the Appellant elected to give sworn testimony. He stated that he was arrested on 22/03/2025 in Watamu and taken to Watamu Police Station with another person.
17. He denied knowing the complainant, committing the offense, being subjected to an identification parade, carrying a weapon, or possessing the exhibits, maintaining that the charges were entirely fabricated.
Evaluation of Evidence and Findings:
18. The ingredients of Robbery with Violence under Section 296(2) of the Penal Code require proof of theft coupled with any aggravating factor, such as being armed with a dangerous or offensive weapon or using personal violence.
19. The daytime attack by a knife-wielding assailant conclusively satisfies these elements.
20. While the trial magistrate rightly noted that the Investigating Officer failed to physically produce the exhibits in court, the concurrent, direct testimonies of PW1, PW2, PW3, and PW4 established an unbroken chain of electronic tracking and immediate apprehension.
21. This immediate apprehension brings into full operation the doctrine of recent possession. Relying on R v. Harris , Paul Mwita Robi v. Republic where an accused found with recently stolen property in the absence of a plausible explanation is presumed to be either the thief or receiver.
22. The Appellant's defense of mere denials failed to dislodge this presumption.
On Sentencing and Section 333(2) of the Criminal Procedure Code:
23. The Appellant correctly points out that the trial court omitted to factor in his pre-trial detention. The record shows the Appellant was arrested on 22nd March 2025 and remained in custody until sentencing on 23 rd January 2026 which is approximately 10 months.
24. Under Section 333(2) of the Criminal Procedure Code, it is mandatory for the court to take into account the period spent in custody prior to conviction. The trial court's omission in this regard warrants appellate intervention.
5. Disposition
25. Accordingly, and for the reasons set out above based on the evidence on record, I make the following orders:
(d) The conviction of the Appellant for the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code is upheld as safe and sound.
(e) The appeal against sentence succeeds to the limited extent of factoring in pre-trial detention. Pursuant to Section 333(2) of the Criminal Procedure Code, the sentence of twenty (20) years' imprisonment imposed by the trial court is hereby varied to take into account the period the Appellant spent in remand custody from 22 nd March 2025 to 23 rd January 2026.
(f) The sentence shall thus run from 23rd January 2026 .
(g) Right of Appeal within 14 days.
26. Orders accordingly.
DATED AND DELIVERED AT MALINDI this 22 nd day of September 2026 .
C. AKAIGWA
JUDGE
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A. Introduction and Background
1. Joseph Katana Karisa, was charged, tried, and convicted before the Chief Magistrate’s Court at Malindi in Criminal Case No. E215 of 2025.
2. The particulars before the trial court were that on the 22 nd March 2025 at around 1330 hours at Turtle Bay beach area in Watamu location, Kilifi North Sub-County within Kilifi County, while armed with an offensive weapon, namely a knife, he robbed Payne Catriona Mary of her waist bag containing a Samsung Galaxy A05 mobile phone, an Apple iPod, Samsung earphones, reading glasses, Kshs. 15,000 in cash, and other personal effects, and immediately before such robbery threatened to use actual violence on the said complainant.
3. He faced an alternative/subsequent count of handling stolen goods under Section 322(1) of the Penal Code.
4. After a full trial where the prosecution called four witnesses and the Appellant gave sworn defense testimony without calling witnesses, the trial court (Hon. E.K. Usui, CM) convicted him on the main charge of Robbery with Violence contrary to Section 296(2) of the Penal Code on 23rd January 2026 and sentenced him to twenty (20) years' imprisonment.
B. The Appeal and Submissions
5. Being dissatisfied with the conviction and sentence, the Appellant filed this appeal. Through his grounds of appeal and submissions, the Appellant challenges the safety of his conviction on several grounds:
(a) Ground 1: The prosecution failed to discharge its mandatory burden of proof under Sections 107, 108, and 109 of the Evidence Act, noting critically that vital physical exhibits (such as the knife, the waist bag, cash, and phones) were never produced in court by the police or prosecution.
(b) Ground 2: The trial court failed to adhere to mandatory sentencing principles and statutory requirements, specifically omitting to factor in the pre-trial incarceration period of 10 months (arrested on 22-03-2025 and held until 23-01-2026) under Section 333(2) of the Criminal Procedure Code.
(c) Ground 3 & 4: The trial court erred in rejecting his defense and failing to evaluate his sworn testimony under Section 211 of the Criminal Procedure Code (recorded at Page 15 Lines 19 to 24 of the Record of Appeal), where he maintained that he was arrested in Watamu, did not know the complainant, was not subjected to an identification parade, and faced fabricated charges.
6. The Respondent, filed written submissions on 24 th June 2026 opposing the appeal:
On Evidence and Identification:
7. The Respondent maintained that the evidence adduced by the four prosecution witnesses was cogent, consistent, and corroborative, proving all elements of the offense beyond reasonable doubt. Citing Richard Munene v. Republic [2018] eKLR and Erick Onyango Odeng’ v. Republic [2014] eKLR , the Respondent urged that minor discrepancies do not invalidate a case unless they touch on fundamental elements or point to deliberate untruthfulness.
On Police Investigations and Defense:
8. The Respondent contended that the police investigation was robust enough to sanction charges and that the Appellant's testimony failed to raise a proper alibi or dislodge the watertight prosecution case.
On Recent Possession:
9. The Respondent relied on the doctrine of recent possession as set out in R v. Harris and Paul Mwita Robi v. Republic, asserting that the swift tracking and recovery of the stolen items shortly after the daytime attack anchored an unassailable presumption of guilt.
3. Duty of the First Appellate Court
10. As this is a first appeal, this Court is acutely mindful of its duty as set out in the locus classicus Okeno v. Republic [1972] EA 32 and further affirmed in Mark Oiruri Mose v. R [2013] eKLR , which is to re-evaluate, reassess, and analyze the entire trial record afresh to reach its own independent conclusion, while keeping in mind that it neither saw nor heard the witnesses testify and therefore must give due allowance for that limitation.
4. Analysis and Determination of Evidence on Record
11. I have meticulously perused the lower court record, the grounds of appeal, and the comprehensive written submissions filed by both parties. The issues for determination centre on whether the charge of robbery with violence was proved beyond reasonable doubt based on the evidence tendered at trial.
The Prosecution Evidence:
12. PW1 (Mtawali Ngayi): An operational manager at Watamu Against Crime organization testified that he received a report on 22/03/2025 regarding the robbery. Along with tourist police, they tracked the signal of the stolen mobile phone along the beach, intercepted a motorcycle carrying the suspect (the Appellant), conducted a search on the pillion passenger, recovered the lost items, verified ownership by calling the number which rang, and arrested him.
13. PW2 (Sgt. Omar Mohammed): A police officer stationed at Tourist Police Watamu confirmed receiving the report from PW1, tracking the phone, arresting the Appellant, and recovering the stolen items which were later identified by the complainant.
14. PW3 (Florian Biziere): The manager at Ocean Sports Hotel Watamu testified that he was informed of a guest being robbed, notified Watamu Against Crime, and drove police officers while tracking the phone in his car, leading to the recovery of items from the Appellant and his subsequent arrest.
15. PW4 (Catriona Mary, the Complainant): Testified that on 22/03/2025 at around 1:30 PM while walking along Turtle Bay beach at Ocean Sports Hotel Watamu, an individual emerged from her left hand side, ran behind her, put a big knife to her throat, threatened to kill her, and cut her waist bag off containing a Samsung Galaxy A05, an Apple iPod, Samsung earphones, reading glasses, Kshs. 13,000/15,000 in cash, and spectacles. She later identified the recovered items and clothes worn by the Appellant at the police station.
The Defense Evidence:
16. Placed on his defense pursuant to Section 211 of the Criminal Procedure Code, the Appellant elected to give sworn testimony. He stated that he was arrested on 22/03/2025 in Watamu and taken to Watamu Police Station with another person.
17. He denied knowing the complainant, committing the offense, being subjected to an identification parade, carrying a weapon, or possessing the exhibits, maintaining that the charges were entirely fabricated.
Evaluation of Evidence and Findings:
18. The ingredients of Robbery with Violence under Section 296(2) of the Penal Code require proof of theft coupled with any aggravating factor, such as being armed with a dangerous or offensive weapon or using personal violence.
19. The daytime attack by a knife-wielding assailant conclusively satisfies these elements.
20. While the trial magistrate rightly noted that the Investigating Officer failed to physically produce the exhibits in court, the concurrent, direct testimonies of PW1, PW2, PW3, and PW4 established an unbroken chain of electronic tracking and immediate apprehension.
21. This immediate apprehension brings into full operation the doctrine of recent possession. Relying on R v. Harris , Paul Mwita Robi v. Republic where an accused found with recently stolen property in the absence of a plausible explanation is presumed to be either the thief or receiver.
22. The Appellant's defense of mere denials failed to dislodge this presumption.
On Sentencing and Section 333(2) of the Criminal Procedure Code:
23. The Appellant correctly points out that the trial court omitted to factor in his pre-trial detention. The record shows the Appellant was arrested on 22nd March 2025 and remained in custody until sentencing on 23 rd January 2026 which is approximately 10 months.
24. Under Section 333(2) of the Criminal Procedure Code, it is mandatory for the court to take into account the period spent in custody prior to conviction. The trial court's omission in this regard warrants appellate intervention.
5. Disposition
25. Accordingly, and for the reasons set out above based on the evidence on record, I make the following orders:
(d) The conviction of the Appellant for the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code is upheld as safe and sound.
(e) The appeal against sentence succeeds to the limited extent of factoring in pre-trial detention. Pursuant to Section 333(2) of the Criminal Procedure Code, the sentence of twenty (20) years' imprisonment imposed by the trial court is hereby varied to take into account the period the Appellant spent in remand custody from 22 nd March 2025 to 23 rd January 2026.
(f) The sentence shall thus run from 23rd January 2026 .
(g) Right of Appeal within 14 days.
26. Orders accordingly.
DATED AND DELIVERED AT MALINDI this 22 nd day of September 2026 .
C. AKAIGWA
JUDGE
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