1. The appellant and eight (8) others were charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code in Muranga Criminal Case No. 1401 of 2017, Republic vs Simon Kamau Wairugi& 8 others).The particulars were that on the 30th April 2017, at Gaicangwarevillage, Kandara subcounty, within Murang’a county, jointly, while armed with dangerous weapons namely pangas, metal bars and knives, robbed Ivy Wambui Kangethe of her mobile phone make Blackberry valued at Kshs 25,000/= and cash Kshs 27,000/= all valued at a total Kshs 52,000 and immediately before such robbery used actual violence on the said Ivy Wambui Kangethe and fatally injured Daniel Chege Ng'ang'a and Grace Wangari Ng'ang'a.
2. During the trial, the prosecution called a total of 11 witnesses.After the trial, the court convicted the appellant and the co accused and sentenced them to death.
3. Being dissatisfied with the said Judgement, they lodged Appeals and subsequently agreed that Joseph Nduati Wambunya’s appeal would be the lead file.
4. On his part, Joseph Nduati Wambunya later on amended the grounds of appeal to;
a) THAT, the learned trial magistrate erred in law and fact by failing to find that visual identification was not proved and that the identification parade was flawed.
b) THAT, that the ingredients of the offence of Robbery with Violence were not conclusively proved as required by the law.
c) THAT, the learned trial magistrate erred in law and fact by failing to find that nothing stolen was recovered from the appellant.
d) THAT, the learned trial magistrate erred in law and fact by convicting the appellant yet failed to consider the appellant's defence.
e) THAT, the learned trial magistrate erred in law and fact by convicting the appellant yet failed to note that crucial witnesses were not availed to testify.
f) THAT, the learned trial magistrate erred in law by awarding a death sentence that offended article articles 25(c), 27(1)(2)(4),
g) 28,29 (f), 50 (2) (p) of the constitution and section 137 of the Criminal Procedure Code.
5. He urged that his identification was not proved and that the identification parade was flawed.
6. Under Section 107 of the Evidence Act (Cap 80), the burden of proof was on the prosecution to prove all the elements of the offence.
7. This being a criminal case, the standard of proof is beyond any reasonable doubt as enunciated in the case of
Sawe v Republic (2003) e KLR.
8. The court of appeal in Ajode vs Republic [2004] 2 KLR,held that;
“Dock identification is “generally” worthless, and a court should not place much reliance on it unless preceded by a properly conducted identification parade. This should be considered in light of, Muiruri & 2 Others vs Republic, [2002] 1KLR 274, where this Court had held that it cannot be said that all dock identification is worthless. The Court may base identification on such evidence if satisfied that on the facts and circumstances of the case, the evidence must be true and if the court had warned itself of the danger of mistaken identification.
9. The same court in Maitanyi vs Republic [1986] KLR 198, held that:
“Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a singlewitness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.
When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light, available conditions and whether the witness was able to make a true impression and description.
The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made.
Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction”.
10.The rule on relying on the evidence of single identifying witness to convict the accused person was set in the case of AbdullaBin Wendo &Another-vs- Reg (1953) 20 EACA166, where it was held that:
“It is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favouring a correct identification were difficult. See also Roria -vs-Republic (1967) EA 583 and Ogeto -vs-Republic (2004) 2 KLR 14.”
11. In Wamunga vs. Republic (1989) KLR 424 this Court held at page 426 it was held that:
“...Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”
12. In the case of Republic-Vs-Turnbull [1976] 3 All EKLR.459 it was held 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)
13. He argues that since PW2 was a single identifying witness the trial magistrate was enjoined to warn himself before relying on PW2's evidence to convict him.
14. It is his case that the magistrate did not state the reason why he relied on PW2's evidence on identification to convict him. He submits that the conditions for identification in the instant matter were not favorable for positive identification.
15. He further submits that PW2 did not know the appellant before the offence was committed.
16. PW11 told the court that the appellant was arrested because his motorcycle was suspected as having been used in several crimes.
17. However, upon investigation, the prosecution did not find any tangible evidence to connect the appellant's motorcycle with the instant offence it is submitted.
18.He submits that no evidence was adduced by prosecution witnesses that the appellant was seen with the said motorcycle at the scene of crime and no witness said that the appellant's motorcycle was used while committing the offence yet the appellant was convicted and sentenced to suffer death.
19.PW11 told court that the appellant was only linked with the instant matter because PW2 identified him in the identification parade.
20.He submits that the identification parade was flawed since it did not take place as per the laid down procedures by the Forces Standing orders.
21.According to him, three identification parades were conducted while the appellants was the third one and it was made up of the same parade members that participated in the identification parade where his co-accused’s were also identified.
22.He submits that the identification parade form indicates that the appellant's identification parade was conducted on 28th May 2017 at 12:00 Pm.
23.He submits that the identification parade officer's aim of using the same parade members between him, and his co-accused persons was to ensure that PW2 was able to pick the only person that was not present in the first identification parade. This, according to him, went against the identification parade rules as set out in the Forces standing orders.
24.He further submits that PW1 told the court that it was raining on the material day and when he checked out he saw some light from the 6 torches.
25.PW1 and PW2's statements on the source of light did not corroborate the evidence according to him and the conditions were not good enough to enable PW2 identify her assailants.
26.He submits that PW2 told the court that there was light but not very clear. PW2 during her examination in chief and cross examination did not mention the source and the intensity of the light that enabled her to identify her assailants in her.
27.The learned trial magistrate therefore erred in holding that the appellant was properly identified.
28.PW11, the investigation officer, told court that it was raining that night and the electricity was disconnected.
29.PW11 went ahead to tell the court that the attackers first dismantled the electricity light before attacking the victims.
30.It is not the complainant that reported the incident. It was reported by Alice Njoki and PW2 did not give any description of the attackers prior to their arrest or while reporting. Alice Njoki was not called to testify or identify the perpetrators.
31.He submits that while in the state of pain and grieving, PW2's ability to remember was negatively affected.
32.He further submits that the ingredients of the offence were not proved.
33.The appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code.
Section 296 (2) of the Penal Code provides that; (1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) 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. (emphasis ours)
34.Reliance is placed in the of case of Oluoch-Vs-Republic [1985] Klr to Include:
a) The offender is armed with any dangerous and offensive weapon or instrument; or
b) The offender is in company with one or more person or persons; or
c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ...”
35.He submits that no prosecution witness or evidence was adduced to prove that the appellant was present when the offence was being committed and that the appellant was armed with any dangerous or offensive weapon. The appellant was not caught with any weapon or instrument.
36.He submits that no evidence was adduced to link the appellant with the instant case or the other accused persons.
37.He further submits that no mobile phone data was adduced by the prosecution to link the appellant with the other accused persons.
38.PW11 the investigation officer testified that the appellant was only arrested out of suspicion, he never knew the appellant before, nothing was recovered from the appellant and that PW2 identified the appellant.
39.He further submits that no evidence was adduced to link the appellant with the instant offence and no evidence was adduced to prove that the appellant was present when the offence was committed
40.PW2 did not mention that the appellant threatened or used any kind of force on her on the material day.
41.No evidence was adduced during trial to prove that the appellant used any force against PW2 or the victims of the offence.
42.In advancing ground 3, he submits that section 4(a) of the Penal Code states as follows:
d) “be in possession" or “have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession orcustody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person:
43.The appellant submits that he was not found in possession of any money or item stolen from the victims of the present offence.PW11 testified that nothing was stolen from PW2 was recovered from the appellant.
44.The prosecution did not discharge its primary burden of proving that the appellant was in possession of the allegedly stolen items see Tome v Republic [2019] KLR.He argues that the appellant's defence was not considered at all by the learned trial magistrate.
45.Article 25 (c) provides that the right to a fair hearing is a fundamental right that cannot be limited.
46.Further, Article 27 of the constitution provides that every individual has a right not to be discriminated against on any ground by the state or any person.
47.In the case of Victor Mwendwa Mulinge V R [2014] KLR the Court of Appeal rendered itself thus on the issue of alibi:
“It is trite law that the burden of proving the falsity, if at all, of an accused's defence of alibi lies on the prosecution; see KARANJA V R. [1983] KLR 501 ... this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused's guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”
48.It is his case that he gave a strong alibi defence that the prosecution did not rebut.
49.He submits that the learned trial magistrate did not weigh his alibi defence against the prosecution's evidence before convicting the appellant.
50.In ground 5, the appellant submitted that crucial witnesses were not availed to testify.
51.The arresting officer was not availed to testify and the failure to avail the arresting officer to testify offended Article50 of the Kenyan Constitution 2010.
52.The court of appeal of Uganda in Bukenya& Others -vs- Uganda (1972) EA 549, page 550: -
“It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of thecase. Thirdly, while the director is not required to call a superfluity of witnesses; if the calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution." (Emphasis ours)
53.This, according to him, violated articles 25 (c), 27,28 and 50 (2) (k). Article 50(2)(k) provides that; every individual has the right to a fair hearing that extends to adducing and challenging evidence. In the instant matter, the appellant was not accorded a chance to hear and cross examine the arresting officer for him to know the circumstances of the appellant's arrest.
54.The person that reported the instant matter was not called to testify. In his defence, the appellant properly told the court that the instant matter was reported by Alice Njoki.
55.The appellant further went ahead to produce the OB. NO. 11/30/4/2017.
56.He submits that if this witness was testified, she could have shed light as to what conspired on the material day by testifying and being cross examined by the appellant.
57.He submits that the prosecution's failure to adduce these two crucial prosecution witnesses was because they feared that if produced their case could not stand and acquit the appellant.
58. The appellant submits that the death sentence offends articles 25(c), 27(1)(2)(4),28,29(f),50(2) (p) of the constitution and section 137 of the criminal procedure code.
59. He also argues that the sentence meted out on him by the lower court is unlawful and unconstitutional on the ground that it was meted out under the mandatory minimum provisions under section 296(2) of the Penal Code that denies the sentencing court the discretion to meet out suitable sentences in suitable cases according to him.
60. The learned trial magistrate stated that, “the said offence carries a mandatory sentence and therefore my hands are tied" this is a clear indication that the trial magistrate could have sentenced the appellant to a lesser sentence that could suit the offence in question if his hands were not tied by the provisions under section 296(2) of the Penal Code. By so being, may this court find that section 296(2) offends Article 27 of the 2010 Kenyan Constitution that discourages discrimination.
61. He submits that his mitigation was not considered as a result of the magistrate's hands being tied. The lack of discretion to award suitable sentences in suitable cases further offends Articles 25(c), 27(1)(2)(4), 28,29(f),50(2)(p) and 160.
62. He invites the court to invoke Article 2(6),10(2),73(1)(a)(iii)(iv), section 333(2) of the Criminal Procedure Code and Paragraph 3.5 of the Judiciary's Sentencing Guidelines and set aside the sentence meted upon the appellant and acquit the appellant or substitute it with an appropriate sentence as provided for by Article 50(2)(p) of the Constitution in case this appeal fails on conviction.
63.The appellant humbly prays that this appeal be allowed, conviction quashed, sentence set aside and the appellant set at liberty.
The Respondent's Submissions.
64.In opposing the appeal, it submits that Section 295 of the Penal code provides that: “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 orretain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”
65.Section 296(2) of the penal code 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.”
66. From the above provision of the law, the necessary ingredients of the offence that must be proved are:
a. That the offender committed robbery-stole anything
b. At the time of the offence, he was in the company of another; or he was armed with a dangerous or offensive weapon; or he used actual violence on the victim and
c. Proper Identification of the offenders.
67. PW2 was very clear in her evidence. She narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them, but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries.
68. Further PW2 gave details of what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant herein (Simon Kamau Wairugi).
69. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room.
70. Her evidence was corroborated by PW1, the neighbour on the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene.
71. The identification by PW2 met all the conditions set by the Court in Obwana &others vs Uganda (2009)2 EA being:
a) The length of time the witness took to identify the accused,
b) The distance from which the witness identified the accused,
c) The source of light that was available at the material time.
72. The court, in convicting, considered the strength of the identification evidence of PW2, cautioning itself in light of precedents that she was a single identifying witness. The evidence was so clear that no doubt whatsoever was cast as to the identity of the perpetrators.
73. PW2 was very categorical on identifying the attackers during the incident. She said there were lights on, the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack. That's how she was able to pick them all out in an identification parade. The identification parades were proper and in accordance with the Forces standing orders.
74. Although the burden on the prosecution is to prove either of them, it submits that this case met all three. The attackers were more than one person, they were armed with dangerous weapons and they did inflict actual violence on the complainant and worse, killed her husband and mother-in law.
75. PW5 provided medical evidence corroborating the injuries suffered by the complainant, PW2. This is evident from the testimony of PW1, PW2 & PW5 coupled with that of all the other prosecution witnesses.
76. All elements of the offence of robbery with violence were proved.
77. The Evidence Act, Section 143 provides that:
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."
78. In this case, all necessary witnesses were called and the necessary ingredients of the offence were proved beyond reasonable doubt.
79. The appellants, in their defences tried to raise an alibi. The Court analysed this at length in the judgement.
80. From the judgement, it is clear that the court indeed weighed the defences raised and found that the same were mere denials and raised as an afterthought and that they did not cast doubt on the prosecution case or even discredit the complainant's evidence on their identification. The court found the defences to be a sham.
81. The appellants were charged with a separate the offence of murder in Hc.Cr.C/22/2017 The Republic Vs Simon Kamau Wairugi and Samuel Nyoike Ndungu Alias Lala and 7 Others. As at the time the court process was unfolding the case was still ongoing and it had a hearing date of 07/07/2026 before Murang'a High Court No.2. The matter is therefore subjudice therefore the issue of double jeopardy cannot arise by virtue of the said matter. In any event, the offences are separate, the victims of the offences are different.
82. It submits that sentencing is a matter of judicial discretion, within the confines of the law. The court in_PamellaAkoth Owuor v Republic [2008] Eklr stated:
“A Court's discretion in sentencing is regulated by law. And where this discretion is judiciously and responsibly exercised within the scope defined by law,the correct stand in law, in my opinion, is that the sentence as imposed is right; and consequently, it is the just deserts of the accused that he or she should serve that sentence.”
83. In the particular circumstances of this case, the court indeed exercised its discretion responsibly. From page 157 of the record, it is very clear that the court considered all relevant factors, including the fact that the principles set out in Muruatetu primarily applies to murder cases under sections 203 and 204 of the Penal Code. Further and more crucially, the court took into account the principles of proportionality, accountability and transparency. The court therefore gave sentences that were both legal and commensurate to the offences committed. We submit that no ground has been raised to challenge the sentencing discretion of the trial court and disturb the sentences imposed.
Analysis and determination.
84. Having looked at the Appellant’s Amended Grounds of Appeal, the written Submissions and those of the Respondent, the issues that arise for determination were as follows: -
i. Whether or not the prosecution proved its case beyond reasonable doubt and
ii. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
85. Having set out the parties cases I will proceed to evaluate and scrutinize the evidence and proceedings on record and reach my own independent conclusion as espoused in David Njuguna Wairimu V Republic [2010] where the court of appeal held: -“The duty of the first appellate court is to analyze 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 appellant 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 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.
86. The offence of robbery with violence is a creation of Sections 295 and 296(2) of the Penal Code. It is axiomatic that in considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms:
“295 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.”
87. In Moneni Ngumbao Mangi v. Republic, CR APP No 141 of 2005 (Mombasa) the Court stated that:
“The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property”.
88. To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. In Johana Ndungu V. Republic, CR. APP. No. 116 of 1995 the Court extrapolated the position as follows:
“In order to appreciate properly as to what acts, constitute an offence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the Penal Code.The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2) …” (Emphasis added). (See also Ganzi & 2 Others V. Republic (2005) 1KLR 52).
89. The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the offence as follows:
1. The offender is armed with any dangerous and offensive weapon or instrument;2. The offender is in company with one or more persons;3. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim.
90. On the question of identification, PW2 narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries.
91. PW2 identified the attackers during the incident. She said the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack.This in my opinion created an environment that helped PW -2 to positively identify the appellant and his co accusers.
92. Further PW2 gave in details of what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant.
93. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room.
94. Her evidence was corroborated by PW1, their neighbor on the issues of the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene.
95. In Francis Kariuki Njiru & 7 others v Republic Criminal Appeal No. 6 of 2001, the Court of Appeal held that identification evidence must be carefully examined, particularly where the incident occurred at night.
96. In CRA 300/2007, Dima Denge & others -V- Republic (2013) eKLR, the Court of Appeal stated as follows “the elements of the offence under section 296(2) are three in number and they are to be read not conjunctively; but disjunctively. One element is sufficient to complete the offence of robbery with violence”.
97. In Johana Nd
[...truncated]
2. During the trial, the prosecution called a total of 11 witnesses.After the trial, the court convicted the appellant and the co accused and sentenced them to death.
3. Being dissatisfied with the said Judgement, they lodged Appeals and subsequently agreed that Joseph Nduati Wambunya’s appeal would be the lead file.
4. On his part, Joseph Nduati Wambunya later on amended the grounds of appeal to;
a) THAT, the learned trial magistrate erred in law and fact by failing to find that visual identification was not proved and that the identification parade was flawed.
b) THAT, that the ingredients of the offence of Robbery with Violence were not conclusively proved as required by the law.
c) THAT, the learned trial magistrate erred in law and fact by failing to find that nothing stolen was recovered from the appellant.
d) THAT, the learned trial magistrate erred in law and fact by convicting the appellant yet failed to consider the appellant's defence.
e) THAT, the learned trial magistrate erred in law and fact by convicting the appellant yet failed to note that crucial witnesses were not availed to testify.
f) THAT, the learned trial magistrate erred in law by awarding a death sentence that offended article articles 25(c), 27(1)(2)(4),
g) 28,29 (f), 50 (2) (p) of the constitution and section 137 of the Criminal Procedure Code.
5. He urged that his identification was not proved and that the identification parade was flawed.
6. Under Section 107 of the Evidence Act (Cap 80), the burden of proof was on the prosecution to prove all the elements of the offence.
7. This being a criminal case, the standard of proof is beyond any reasonable doubt as enunciated in the case of
Sawe v Republic (2003) e KLR.
8. The court of appeal in Ajode vs Republic [2004] 2 KLR,held that;
“Dock identification is “generally” worthless, and a court should not place much reliance on it unless preceded by a properly conducted identification parade. This should be considered in light of, Muiruri & 2 Others vs Republic, [2002] 1KLR 274, where this Court had held that it cannot be said that all dock identification is worthless. The Court may base identification on such evidence if satisfied that on the facts and circumstances of the case, the evidence must be true and if the court had warned itself of the danger of mistaken identification.
9. The same court in Maitanyi vs Republic [1986] KLR 198, held that:
“Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a singlewitness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.
When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light, available conditions and whether the witness was able to make a true impression and description.
The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made.
Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction”.
10.The rule on relying on the evidence of single identifying witness to convict the accused person was set in the case of AbdullaBin Wendo &Another-vs- Reg (1953) 20 EACA166, where it was held that:
“It is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favouring a correct identification were difficult. See also Roria -vs-Republic (1967) EA 583 and Ogeto -vs-Republic (2004) 2 KLR 14.”
11. In Wamunga vs. Republic (1989) KLR 424 this Court held at page 426 it was held that:
“...Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”
12. In the case of Republic-Vs-Turnbull [1976] 3 All EKLR.459 it was held 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)
13. He argues that since PW2 was a single identifying witness the trial magistrate was enjoined to warn himself before relying on PW2's evidence to convict him.
14. It is his case that the magistrate did not state the reason why he relied on PW2's evidence on identification to convict him. He submits that the conditions for identification in the instant matter were not favorable for positive identification.
15. He further submits that PW2 did not know the appellant before the offence was committed.
16. PW11 told the court that the appellant was arrested because his motorcycle was suspected as having been used in several crimes.
17. However, upon investigation, the prosecution did not find any tangible evidence to connect the appellant's motorcycle with the instant offence it is submitted.
18.He submits that no evidence was adduced by prosecution witnesses that the appellant was seen with the said motorcycle at the scene of crime and no witness said that the appellant's motorcycle was used while committing the offence yet the appellant was convicted and sentenced to suffer death.
19.PW11 told court that the appellant was only linked with the instant matter because PW2 identified him in the identification parade.
20.He submits that the identification parade was flawed since it did not take place as per the laid down procedures by the Forces Standing orders.
21.According to him, three identification parades were conducted while the appellants was the third one and it was made up of the same parade members that participated in the identification parade where his co-accused’s were also identified.
22.He submits that the identification parade form indicates that the appellant's identification parade was conducted on 28th May 2017 at 12:00 Pm.
23.He submits that the identification parade officer's aim of using the same parade members between him, and his co-accused persons was to ensure that PW2 was able to pick the only person that was not present in the first identification parade. This, according to him, went against the identification parade rules as set out in the Forces standing orders.
24.He further submits that PW1 told the court that it was raining on the material day and when he checked out he saw some light from the 6 torches.
25.PW1 and PW2's statements on the source of light did not corroborate the evidence according to him and the conditions were not good enough to enable PW2 identify her assailants.
26.He submits that PW2 told the court that there was light but not very clear. PW2 during her examination in chief and cross examination did not mention the source and the intensity of the light that enabled her to identify her assailants in her.
27.The learned trial magistrate therefore erred in holding that the appellant was properly identified.
28.PW11, the investigation officer, told court that it was raining that night and the electricity was disconnected.
29.PW11 went ahead to tell the court that the attackers first dismantled the electricity light before attacking the victims.
30.It is not the complainant that reported the incident. It was reported by Alice Njoki and PW2 did not give any description of the attackers prior to their arrest or while reporting. Alice Njoki was not called to testify or identify the perpetrators.
31.He submits that while in the state of pain and grieving, PW2's ability to remember was negatively affected.
32.He further submits that the ingredients of the offence were not proved.
33.The appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code.
Section 296 (2) of the Penal Code provides that; (1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) 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. (emphasis ours)
34.Reliance is placed in the of case of Oluoch-Vs-Republic [1985] Klr to Include:
a) The offender is armed with any dangerous and offensive weapon or instrument; or
b) The offender is in company with one or more person or persons; or
c) At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ...”
35.He submits that no prosecution witness or evidence was adduced to prove that the appellant was present when the offence was being committed and that the appellant was armed with any dangerous or offensive weapon. The appellant was not caught with any weapon or instrument.
36.He submits that no evidence was adduced to link the appellant with the instant case or the other accused persons.
37.He further submits that no mobile phone data was adduced by the prosecution to link the appellant with the other accused persons.
38.PW11 the investigation officer testified that the appellant was only arrested out of suspicion, he never knew the appellant before, nothing was recovered from the appellant and that PW2 identified the appellant.
39.He further submits that no evidence was adduced to link the appellant with the instant offence and no evidence was adduced to prove that the appellant was present when the offence was committed
40.PW2 did not mention that the appellant threatened or used any kind of force on her on the material day.
41.No evidence was adduced during trial to prove that the appellant used any force against PW2 or the victims of the offence.
42.In advancing ground 3, he submits that section 4(a) of the Penal Code states as follows:
d) “be in possession" or “have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession orcustody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person:
43.The appellant submits that he was not found in possession of any money or item stolen from the victims of the present offence.PW11 testified that nothing was stolen from PW2 was recovered from the appellant.
44.The prosecution did not discharge its primary burden of proving that the appellant was in possession of the allegedly stolen items see Tome v Republic [2019] KLR.He argues that the appellant's defence was not considered at all by the learned trial magistrate.
45.Article 25 (c) provides that the right to a fair hearing is a fundamental right that cannot be limited.
46.Further, Article 27 of the constitution provides that every individual has a right not to be discriminated against on any ground by the state or any person.
47.In the case of Victor Mwendwa Mulinge V R [2014] KLR the Court of Appeal rendered itself thus on the issue of alibi:
“It is trite law that the burden of proving the falsity, if at all, of an accused's defence of alibi lies on the prosecution; see KARANJA V R. [1983] KLR 501 ... this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused's guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”
48.It is his case that he gave a strong alibi defence that the prosecution did not rebut.
49.He submits that the learned trial magistrate did not weigh his alibi defence against the prosecution's evidence before convicting the appellant.
50.In ground 5, the appellant submitted that crucial witnesses were not availed to testify.
51.The arresting officer was not availed to testify and the failure to avail the arresting officer to testify offended Article50 of the Kenyan Constitution 2010.
52.The court of appeal of Uganda in Bukenya& Others -vs- Uganda (1972) EA 549, page 550: -
“It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of thecase. Thirdly, while the director is not required to call a superfluity of witnesses; if the calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution." (Emphasis ours)
53.This, according to him, violated articles 25 (c), 27,28 and 50 (2) (k). Article 50(2)(k) provides that; every individual has the right to a fair hearing that extends to adducing and challenging evidence. In the instant matter, the appellant was not accorded a chance to hear and cross examine the arresting officer for him to know the circumstances of the appellant's arrest.
54.The person that reported the instant matter was not called to testify. In his defence, the appellant properly told the court that the instant matter was reported by Alice Njoki.
55.The appellant further went ahead to produce the OB. NO. 11/30/4/2017.
56.He submits that if this witness was testified, she could have shed light as to what conspired on the material day by testifying and being cross examined by the appellant.
57.He submits that the prosecution's failure to adduce these two crucial prosecution witnesses was because they feared that if produced their case could not stand and acquit the appellant.
58. The appellant submits that the death sentence offends articles 25(c), 27(1)(2)(4),28,29(f),50(2) (p) of the constitution and section 137 of the criminal procedure code.
59. He also argues that the sentence meted out on him by the lower court is unlawful and unconstitutional on the ground that it was meted out under the mandatory minimum provisions under section 296(2) of the Penal Code that denies the sentencing court the discretion to meet out suitable sentences in suitable cases according to him.
60. The learned trial magistrate stated that, “the said offence carries a mandatory sentence and therefore my hands are tied" this is a clear indication that the trial magistrate could have sentenced the appellant to a lesser sentence that could suit the offence in question if his hands were not tied by the provisions under section 296(2) of the Penal Code. By so being, may this court find that section 296(2) offends Article 27 of the 2010 Kenyan Constitution that discourages discrimination.
61. He submits that his mitigation was not considered as a result of the magistrate's hands being tied. The lack of discretion to award suitable sentences in suitable cases further offends Articles 25(c), 27(1)(2)(4), 28,29(f),50(2)(p) and 160.
62. He invites the court to invoke Article 2(6),10(2),73(1)(a)(iii)(iv), section 333(2) of the Criminal Procedure Code and Paragraph 3.5 of the Judiciary's Sentencing Guidelines and set aside the sentence meted upon the appellant and acquit the appellant or substitute it with an appropriate sentence as provided for by Article 50(2)(p) of the Constitution in case this appeal fails on conviction.
63.The appellant humbly prays that this appeal be allowed, conviction quashed, sentence set aside and the appellant set at liberty.
The Respondent's Submissions.
64.In opposing the appeal, it submits that Section 295 of the Penal code provides that: “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 orretain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”
65.Section 296(2) of the penal code 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.”
66. From the above provision of the law, the necessary ingredients of the offence that must be proved are:
a. That the offender committed robbery-stole anything
b. At the time of the offence, he was in the company of another; or he was armed with a dangerous or offensive weapon; or he used actual violence on the victim and
c. Proper Identification of the offenders.
67. PW2 was very clear in her evidence. She narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them, but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries.
68. Further PW2 gave details of what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant herein (Simon Kamau Wairugi).
69. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room.
70. Her evidence was corroborated by PW1, the neighbour on the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene.
71. The identification by PW2 met all the conditions set by the Court in Obwana &others vs Uganda (2009)2 EA being:
a) The length of time the witness took to identify the accused,
b) The distance from which the witness identified the accused,
c) The source of light that was available at the material time.
72. The court, in convicting, considered the strength of the identification evidence of PW2, cautioning itself in light of precedents that she was a single identifying witness. The evidence was so clear that no doubt whatsoever was cast as to the identity of the perpetrators.
73. PW2 was very categorical on identifying the attackers during the incident. She said there were lights on, the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack. That's how she was able to pick them all out in an identification parade. The identification parades were proper and in accordance with the Forces standing orders.
74. Although the burden on the prosecution is to prove either of them, it submits that this case met all three. The attackers were more than one person, they were armed with dangerous weapons and they did inflict actual violence on the complainant and worse, killed her husband and mother-in law.
75. PW5 provided medical evidence corroborating the injuries suffered by the complainant, PW2. This is evident from the testimony of PW1, PW2 & PW5 coupled with that of all the other prosecution witnesses.
76. All elements of the offence of robbery with violence were proved.
77. The Evidence Act, Section 143 provides that:
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."
78. In this case, all necessary witnesses were called and the necessary ingredients of the offence were proved beyond reasonable doubt.
79. The appellants, in their defences tried to raise an alibi. The Court analysed this at length in the judgement.
80. From the judgement, it is clear that the court indeed weighed the defences raised and found that the same were mere denials and raised as an afterthought and that they did not cast doubt on the prosecution case or even discredit the complainant's evidence on their identification. The court found the defences to be a sham.
81. The appellants were charged with a separate the offence of murder in Hc.Cr.C/22/2017 The Republic Vs Simon Kamau Wairugi and Samuel Nyoike Ndungu Alias Lala and 7 Others. As at the time the court process was unfolding the case was still ongoing and it had a hearing date of 07/07/2026 before Murang'a High Court No.2. The matter is therefore subjudice therefore the issue of double jeopardy cannot arise by virtue of the said matter. In any event, the offences are separate, the victims of the offences are different.
82. It submits that sentencing is a matter of judicial discretion, within the confines of the law. The court in_PamellaAkoth Owuor v Republic [2008] Eklr stated:
“A Court's discretion in sentencing is regulated by law. And where this discretion is judiciously and responsibly exercised within the scope defined by law,the correct stand in law, in my opinion, is that the sentence as imposed is right; and consequently, it is the just deserts of the accused that he or she should serve that sentence.”
83. In the particular circumstances of this case, the court indeed exercised its discretion responsibly. From page 157 of the record, it is very clear that the court considered all relevant factors, including the fact that the principles set out in Muruatetu primarily applies to murder cases under sections 203 and 204 of the Penal Code. Further and more crucially, the court took into account the principles of proportionality, accountability and transparency. The court therefore gave sentences that were both legal and commensurate to the offences committed. We submit that no ground has been raised to challenge the sentencing discretion of the trial court and disturb the sentences imposed.
Analysis and determination.
84. Having looked at the Appellant’s Amended Grounds of Appeal, the written Submissions and those of the Respondent, the issues that arise for determination were as follows: -
i. Whether or not the prosecution proved its case beyond reasonable doubt and
ii. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
85. Having set out the parties cases I will proceed to evaluate and scrutinize the evidence and proceedings on record and reach my own independent conclusion as espoused in David Njuguna Wairimu V Republic [2010] where the court of appeal held: -“The duty of the first appellate court is to analyze 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 appellant 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 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.
86. The offence of robbery with violence is a creation of Sections 295 and 296(2) of the Penal Code. It is axiomatic that in considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms:
“295 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.”
87. In Moneni Ngumbao Mangi v. Republic, CR APP No 141 of 2005 (Mombasa) the Court stated that:
“The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property”.
88. To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. In Johana Ndungu V. Republic, CR. APP. No. 116 of 1995 the Court extrapolated the position as follows:
“In order to appreciate properly as to what acts, constitute an offence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the Penal Code.The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2) …” (Emphasis added). (See also Ganzi & 2 Others V. Republic (2005) 1KLR 52).
89. The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the offence as follows:
1. The offender is armed with any dangerous and offensive weapon or instrument;2. The offender is in company with one or more persons;3. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim.
90. On the question of identification, PW2 narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries.
91. PW2 identified the attackers during the incident. She said the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack.This in my opinion created an environment that helped PW -2 to positively identify the appellant and his co accusers.
92. Further PW2 gave in details of what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant.
93. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room.
94. Her evidence was corroborated by PW1, their neighbor on the issues of the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene.
95. In Francis Kariuki Njiru & 7 others v Republic Criminal Appeal No. 6 of 2001, the Court of Appeal held that identification evidence must be carefully examined, particularly where the incident occurred at night.
96. In CRA 300/2007, Dima Denge & others -V- Republic (2013) eKLR, the Court of Appeal stated as follows “the elements of the offence under section 296(2) are three in number and they are to be read not conjunctively; but disjunctively. One element is sufficient to complete the offence of robbery with violence”.
97. In Johana Nd
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