REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. E007 OF 2024
JUSTUS MAKARIO OMBASA………………………APPELLANT
VERSUS
REPUBLIC………………………………………….RESPONDENT
(Being an appeal from the judgement of the Magistrate’s Court at Kisii, Hon. S.K. Onjoro, (SRM) dated 11 th June, 2020 in Kisii CMCCR 1215 of 2018)
JUDGEMENT
1. The appeal arises from the judgement of the Magistrate’s Court at Kisii , Hon. S.K. Onjoro, (SRM), dated 11th June, 2020 in Kisii CMCCR Case No. 1215 of 2018 wherein the appellant was convicted in two counts for the offence of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code and subsequently sentenced to serve two concurrent sentences of imprisonment for 20 years.
2. The appellant being aggrieved by the conviction and the sentence filed a petition of appeal dated the 25 th January, 2024 citing grounds that can be summarized as hereunder;
(a) That the offence was not proved to the requisite standards and that the evidence relied on was based on shoddy investigation, and
(b) That the concurrent sentences of 20 years imprisonment was harsh in the circumstance of the case.
3. The prosecution’s case was that on 1 st June, 2018 Charles Ombasa and Ronald Omwanza, who are brothers, were heading home at around 9:00 PM riding on a motorcycle when the motorcycle ran into a rope that had been tied across the road. The rope snapped the rider who was carrying the two pillion passengers and all fell down. Persons who were armed with machetes and clubs attacked and robbed the two brothers of of their valuables including money and phones.
4. The two key prosecution witnesses told the court that they identified the appellant who had been in the bar where they were drinking prior to their attack. It was their evidence that they were attacked in a well-lit scene where there were streetlights and electricity lights beaming from surrounding houses.
5. Mr. Ronald told the court that the appellant took money from his pockets and his mobile phone after assaulting him while in the company of another. Charles Ombaso similarly told the trial court that the appellant cut him on the nose with a machete which he used to hit him severally all over the body while demanding that he surrenders all the valuables that he had.
6. It is the evidence of Charles that he knew the appellant prior to the incident and even the place where the appellant was living. The two victims were taken to hospital before reporting their ordeal to the police. Charles told the court that the appellant had helped him to carry a bag of sugar prior to the incident. The appellant had reportedly threatened the two brothers when they complained of disturbance by people who were charging mobile phones near their table including the appellant.
7. Mr. Evans Nyaata Mosota who is a clinical officer examined the two complainants on 4 th June, 2018 as regards their injuries. According to Evans, both complainants had injuries caused by sharp and blunt objects. It is noteworthy that Charles mentioned to Evans being attacked by someone who is well known to him.
8. No. 70013, CPL. Alfred Kilonzi told the court that he received a report from Charles Ombasa, Ronald Omwanza and one Edward Orina to the effect that the three had been attacked on 1 st June, 2018 and robbed. The victims mentioned knowing some of the suspects, later when the appellant was arrested by members of the community policing he was allegedly identified by one of the victims whose name the investigating officer did not state in his testimony. He told the court that two suspects called Deborah and Enoch Owancho fled after realizing that the police were on their trail.
9. The appellant denied any involvement in the attack against the complainants; he told the court that he was arrested at the instigation of a neighbor who has been eying his land. He faulted the prosecution for its failure to hold an identification parade in which the witnesses could have identified him.
APPELLANT’S SUBMISSIONS
10. The Appellant who appeared virtually on 20-5-2026 submitted that though the complainants alleged that an Identification parade was held, no such identification parade was held. He also submitted that the owner of the bar did not testify that the complainants were drinking in the bar when they were attacked.
11. He further submitted that though the incident happened on 1 st June, 2018, he was arrested on 9 th June, 2018 by members of community policing. He also submitted that the complainant alleged to have hired him to transport things on a motor cycle, as such if he knew him then he would have been arrested immediately after the incident.
ISSUES FOR DETERMINATION
12. Arising from the grounds of appeal and the evidence on record, the issues that fall for determination are:
i. Whether the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code was proved beyond reasonable doubt;
ii. Whether the appellant was properly identified as one of the assailants who attacked and robbed the two complainants, and
iii. Whether the sentence of imprisonment meted against the appellant was manifestly excessive in the circumstances of the case.
ANALYSIS AND DETERMINATION
i) Whether the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code was proved beyond reasonable doubt
13. The elements of the offence of robbery with violence under Section 296(2) of the Penal Code were set out by the Court of Appeal in Ganzi & 2 others v Republic [2005] 1 KLR 52 as being made out where:
a) The offender is armed with any dangerous or offensive weapon or instrument; or
b) The offender is in the company of one or more other persons; or
c) Immediately before, or immediately after the robbery, the offender wounds, beats, strikes, or uses other personal violence on any person.
14. Theft remains the central element that must first be established for an offence of this nature as held in Oluoch & another v Republic [2022] KECA 1260 .
15. In the record before the trial court, theft was proved through the direct and mutually consistent testimony of PW1 and PW2 as to the cash and phones taken from each of them.
(i) The fact that the attackers were more than one was established by both witnesses' unchallenged account that the attackers were at least two, if not more.
(ii) The violence element is established not only by the complainants' oral testimony of being cut and beaten with pangas and rungus, but is independently corroborated by the clinical officer's medical evidence showing that the victims suffered cut wounds and blunt injuries.
(iii) Whether the appellant was properly identified as one of the assailants, who attacked and robbed the two complainants.
16. The trial court was of the view that the victims of robbery recognized the appellant as opposed to evidence of mere identification of the appellant. It is trite law that recognition of a suspect by a victim is better than mere identification of a stranger. The distinction matters as the Court of Appeal held in Anjononi v Republic [1980] KLR 5 9 that:
The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being nighttime the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; 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. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).
17. This has been consistently reaffirmed, including recently in Onyancha & 2 others v Republic [2025] KECA 1903 . However, recognition evidence is not exempt from scrutiny. A long line of authorities require the trial court to examine such evidence carefully and be satisfied that the circumstances of recognition were favourable and free from the possibility of error. The court of appeal in the case of Wamunga v Republic [1989] KECA 47 (KLR) held that
It is trite law 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 circumstance of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
18. I now turn to the circumstances obtaining when the two key prosecution witnesses are said to have identified the appellant through recognition. The two key prosecution witnesses converged at Hideout Bar at around 5: 00 PM and stayed until 9:00 PM when they decided to leave for their home. They were suddenly attacked after covering a distance of about 300 meters from the bar. From their testimonies, the rider who was carrying them encountered a rope tied across the road, which entangled him and caused him to crash to the ground together with his pillion passengers.
19. Even though the rider joined the two complainants while reporting their robbery incident, the rider was not called as a witness. It is not clear if he was equally attacked and robbed, as was the case of Charles and his brother. The key prosecution witnesses said they identified the appellant with the aid of streetlights and security lights from surrounding homes. The distance of the sources of light from the scene was not established and so was the position of the victims and the appellant at the time of their alleged identification.
20. The state of intoxication of the two brothers was not established, for witnesses who had been drinking for a numbers of hours it is was important to establish their state of sobriety. More so, when they were attacked suddenly after falling down. None reports recognizing the voice of the appellant, which would not be impaired by darkness compared to recognition by sight at night. Some authorities require trial courts to establish the strength of sources of light and their positioning as regards the identifying witnesses and the attackers. These are facts that cannot be inferred or guessed, they have to be established through testimonies of witnesses.
21. It would have been prudent to call the rider who was better placed than the two brothers to narrate the circumstances of the attack. I have scrutinized the evidence adduced by the investigating officer, even though he suggests that the victims identified some of the suspects, he does not mention the names or description of the suspects as given by witnesses. Those who arrested the appellant were not called as witnesses, it is not clear what information they were acting on when they executed the arrest.
22. It is apparent that CPL Alfred Kilonzi took the victims to the cell where the appellant was held instead of arranging for the holding of identification parades. I agree with the appellant that he conducted shoddy investigations. No recoveries were made from the appellant; CPL Kilonzo makes no mention if the stolen electronic gadgets were ever traced. For the reasons that I have cited it cannot be said that the alleged identification of the appellant by recognition was free from fault.
23. It is possible that he was merely linked to the commission of the offence because he was seen in a bar where the complainants had been drinking.
24. It follows that his conviction is so unsafe, one cannot rule out the possibility that he was linked with the offence due to the altercation that he had with the key witnesses before they left the bar. For the above reasons I do allow the appellant’s appeal in its entire, quash the conviction and set aside the sentences of imprisonment.
25. Consequently, the appellant is hereby ordered to be set at liberty unless otherwise lawfully held.
Judgment read, dated, signed and delivered virtually this 23 rd day of July, 2026
R. K.Koech
JUDGE
In the presence of;
Mr. Koima appearing virtually for the Repondent
The Appellant appearing virtually from Kibos Medium Prison.
Ms. Roselyne Makali, court assistant.
Page 9Page 9Judgement HCCRA E007 of 2024
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. E007 OF 2024
JUSTUS MAKARIO OMBASA………………………APPELLANT
VERSUS
REPUBLIC………………………………………….RESPONDENT
(Being an appeal from the judgement of the Magistrate’s Court at Kisii, Hon. S.K. Onjoro, (SRM) dated 11 th June, 2020 in Kisii CMCCR 1215 of 2018)
JUDGEMENT
1. The appeal arises from the judgement of the Magistrate’s Court at Kisii , Hon. S.K. Onjoro, (SRM), dated 11th June, 2020 in Kisii CMCCR Case No. 1215 of 2018 wherein the appellant was convicted in two counts for the offence of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code and subsequently sentenced to serve two concurrent sentences of imprisonment for 20 years.
2. The appellant being aggrieved by the conviction and the sentence filed a petition of appeal dated the 25 th January, 2024 citing grounds that can be summarized as hereunder;
(a) That the offence was not proved to the requisite standards and that the evidence relied on was based on shoddy investigation, and
(b) That the concurrent sentences of 20 years imprisonment was harsh in the circumstance of the case.
3. The prosecution’s case was that on 1 st June, 2018 Charles Ombasa and Ronald Omwanza, who are brothers, were heading home at around 9:00 PM riding on a motorcycle when the motorcycle ran into a rope that had been tied across the road. The rope snapped the rider who was carrying the two pillion passengers and all fell down. Persons who were armed with machetes and clubs attacked and robbed the two brothers of of their valuables including money and phones.
4. The two key prosecution witnesses told the court that they identified the appellant who had been in the bar where they were drinking prior to their attack. It was their evidence that they were attacked in a well-lit scene where there were streetlights and electricity lights beaming from surrounding houses.
5. Mr. Ronald told the court that the appellant took money from his pockets and his mobile phone after assaulting him while in the company of another. Charles Ombaso similarly told the trial court that the appellant cut him on the nose with a machete which he used to hit him severally all over the body while demanding that he surrenders all the valuables that he had.
6. It is the evidence of Charles that he knew the appellant prior to the incident and even the place where the appellant was living. The two victims were taken to hospital before reporting their ordeal to the police. Charles told the court that the appellant had helped him to carry a bag of sugar prior to the incident. The appellant had reportedly threatened the two brothers when they complained of disturbance by people who were charging mobile phones near their table including the appellant.
7. Mr. Evans Nyaata Mosota who is a clinical officer examined the two complainants on 4 th June, 2018 as regards their injuries. According to Evans, both complainants had injuries caused by sharp and blunt objects. It is noteworthy that Charles mentioned to Evans being attacked by someone who is well known to him.
8. No. 70013, CPL. Alfred Kilonzi told the court that he received a report from Charles Ombasa, Ronald Omwanza and one Edward Orina to the effect that the three had been attacked on 1 st June, 2018 and robbed. The victims mentioned knowing some of the suspects, later when the appellant was arrested by members of the community policing he was allegedly identified by one of the victims whose name the investigating officer did not state in his testimony. He told the court that two suspects called Deborah and Enoch Owancho fled after realizing that the police were on their trail.
9. The appellant denied any involvement in the attack against the complainants; he told the court that he was arrested at the instigation of a neighbor who has been eying his land. He faulted the prosecution for its failure to hold an identification parade in which the witnesses could have identified him.
APPELLANT’S SUBMISSIONS
10. The Appellant who appeared virtually on 20-5-2026 submitted that though the complainants alleged that an Identification parade was held, no such identification parade was held. He also submitted that the owner of the bar did not testify that the complainants were drinking in the bar when they were attacked.
11. He further submitted that though the incident happened on 1 st June, 2018, he was arrested on 9 th June, 2018 by members of community policing. He also submitted that the complainant alleged to have hired him to transport things on a motor cycle, as such if he knew him then he would have been arrested immediately after the incident.
ISSUES FOR DETERMINATION
12. Arising from the grounds of appeal and the evidence on record, the issues that fall for determination are:
i. Whether the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code was proved beyond reasonable doubt;
ii. Whether the appellant was properly identified as one of the assailants who attacked and robbed the two complainants, and
iii. Whether the sentence of imprisonment meted against the appellant was manifestly excessive in the circumstances of the case.
ANALYSIS AND DETERMINATION
i) Whether the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code was proved beyond reasonable doubt
13. The elements of the offence of robbery with violence under Section 296(2) of the Penal Code were set out by the Court of Appeal in Ganzi & 2 others v Republic [2005] 1 KLR 52 as being made out where:
a) The offender is armed with any dangerous or offensive weapon or instrument; or
b) The offender is in the company of one or more other persons; or
c) Immediately before, or immediately after the robbery, the offender wounds, beats, strikes, or uses other personal violence on any person.
14. Theft remains the central element that must first be established for an offence of this nature as held in Oluoch & another v Republic [2022] KECA 1260 .
15. In the record before the trial court, theft was proved through the direct and mutually consistent testimony of PW1 and PW2 as to the cash and phones taken from each of them.
(i) The fact that the attackers were more than one was established by both witnesses' unchallenged account that the attackers were at least two, if not more.
(ii) The violence element is established not only by the complainants' oral testimony of being cut and beaten with pangas and rungus, but is independently corroborated by the clinical officer's medical evidence showing that the victims suffered cut wounds and blunt injuries.
(iii) Whether the appellant was properly identified as one of the assailants, who attacked and robbed the two complainants.
16. The trial court was of the view that the victims of robbery recognized the appellant as opposed to evidence of mere identification of the appellant. It is trite law that recognition of a suspect by a victim is better than mere identification of a stranger. The distinction matters as the Court of Appeal held in Anjononi v Republic [1980] KLR 5 9 that:
The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being nighttime the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; 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. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).
17. This has been consistently reaffirmed, including recently in Onyancha & 2 others v Republic [2025] KECA 1903 . However, recognition evidence is not exempt from scrutiny. A long line of authorities require the trial court to examine such evidence carefully and be satisfied that the circumstances of recognition were favourable and free from the possibility of error. The court of appeal in the case of Wamunga v Republic [1989] KECA 47 (KLR) held that
It is trite law 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 circumstance of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
18. I now turn to the circumstances obtaining when the two key prosecution witnesses are said to have identified the appellant through recognition. The two key prosecution witnesses converged at Hideout Bar at around 5: 00 PM and stayed until 9:00 PM when they decided to leave for their home. They were suddenly attacked after covering a distance of about 300 meters from the bar. From their testimonies, the rider who was carrying them encountered a rope tied across the road, which entangled him and caused him to crash to the ground together with his pillion passengers.
19. Even though the rider joined the two complainants while reporting their robbery incident, the rider was not called as a witness. It is not clear if he was equally attacked and robbed, as was the case of Charles and his brother. The key prosecution witnesses said they identified the appellant with the aid of streetlights and security lights from surrounding homes. The distance of the sources of light from the scene was not established and so was the position of the victims and the appellant at the time of their alleged identification.
20. The state of intoxication of the two brothers was not established, for witnesses who had been drinking for a numbers of hours it is was important to establish their state of sobriety. More so, when they were attacked suddenly after falling down. None reports recognizing the voice of the appellant, which would not be impaired by darkness compared to recognition by sight at night. Some authorities require trial courts to establish the strength of sources of light and their positioning as regards the identifying witnesses and the attackers. These are facts that cannot be inferred or guessed, they have to be established through testimonies of witnesses.
21. It would have been prudent to call the rider who was better placed than the two brothers to narrate the circumstances of the attack. I have scrutinized the evidence adduced by the investigating officer, even though he suggests that the victims identified some of the suspects, he does not mention the names or description of the suspects as given by witnesses. Those who arrested the appellant were not called as witnesses, it is not clear what information they were acting on when they executed the arrest.
22. It is apparent that CPL Alfred Kilonzi took the victims to the cell where the appellant was held instead of arranging for the holding of identification parades. I agree with the appellant that he conducted shoddy investigations. No recoveries were made from the appellant; CPL Kilonzo makes no mention if the stolen electronic gadgets were ever traced. For the reasons that I have cited it cannot be said that the alleged identification of the appellant by recognition was free from fault.
23. It is possible that he was merely linked to the commission of the offence because he was seen in a bar where the complainants had been drinking.
24. It follows that his conviction is so unsafe, one cannot rule out the possibility that he was linked with the offence due to the altercation that he had with the key witnesses before they left the bar. For the above reasons I do allow the appellant’s appeal in its entire, quash the conviction and set aside the sentences of imprisonment.
25. Consequently, the appellant is hereby ordered to be set at liberty unless otherwise lawfully held.
Judgment read, dated, signed and delivered virtually this 23 rd day of July, 2026
R. K.Koech
JUDGE
In the presence of;
Mr. Koima appearing virtually for the Repondent
The Appellant appearing virtually from Kibos Medium Prison.
Ms. Roselyne Makali, court assistant.
Page 9Page 9Judgement HCCRA E007 of 2024