A. THE CHARGE.
1. Kelvin Cheruiyot (hereinafter referred to as “the Appellant”) was charged before the trial court with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
2. It was stated in the particulars of the offence that on 9th of June, 2024 at about 2350hrs near Chilchila Primary School, at Fort Ternan area in Kipkelion West Subcounty within Kericho County, jointly with others not before the trial court, the Appellant robbed Hassan Kiprotich (hereinafter referred to as “the complainant”) of one cell phone make Infinix Note 12 Play valued at Ksh.18,000/- and Ksh.2,600/- cash.
3. In the alternative count, the Appellant was charged with the offence of handling stolen goods contrary to Section 322(1) as read with 322(2) of the Penal Code, Cap 63 Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on the 9th day of June, 2024 at around 2350hrs near Chilchila Primary School at Fort Ternan area in Kipkelion West Subcounty within Kericho County, the Appellant was found to be in possession of one cell phone make Infinix Note 12 Play valued at Ksh.18,000/-, the property of Hassan Kiprotich.
5. The Appellant denied the charges, which then called for a full trial.
6. The prosecution case was founded on the evidence of 5 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 3rd October, 2024. The Appellant filed supplementary grounds of appeal dated 14th March, 2025. The grounds of appeal may be summarized as follows:
1. Insufficient evidence and/or unproven ingredients of the offence:
- The learned trial Magistrate erred in law and fact by convicting the Appellant when the ingredients of the offence were not proved to the required standard.
- The learned trial Magistrate erred in law by relying on prosecution case/evidence that contained inconsistencies, contradictions and gaps making the evidence unreliable.
- The learned trial Magistrate erred in law by failing to address conflicting, irrelevant and/or contradictory evidence.
2. Identification evidence issues:
- The learned trial Magistrate erred in law in convicting the Appellant by relying on identification evidence that was inconclusive.
3. Doctrine of recent possession misapplied:
- The learned trial Magistrate erred in applying the doctrine of recent possession when its ingredients were not proved beyond reasonable doubt.
4. Procedural irregularities and/or fatal defects in evidence:
- The learned trial Magistrate erred in failing to ascertain that the proceedings were conducted in a language that the Appellant understood.
- The learned trial Magistrate erred in convicting the Appellant by relying on evidence that the Appellant was not afforded an opportunity to test through cross-examination.
5. Sentencing and/or fair trial rights:
- Denial of the Appellant’s right to the least prescribed sentence, violating Articles 25(c) and 50(2)(p) of the Constitution, leading to an unfair trial.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
11. Now to the record of the trial court, the prosecution called Kibyegon Alex Ng’etich, a registered clinical officer who worked at Fort Ternan Subcounty Hospital, as PW1, who testified and told the trial court that the complainant was attended to and treated at the facility on 13th June, 2024, where he presented a history of having been attacked and assaulted by persons known to him. He had received initial treatment at the facility on 10th June, 2024.
12. PW1 told the trial court that he attended to and treated the complainant, whose neck and head had left periorbital swelling with hyperemic reddish conjunctiva of the left eye. The complainant also had a cut and swelling on the glans penis shaft junction and left testicular swelling was noted.
13. The witness documented his findings in treatment notes and a P3 form that he produced as PExh1 and PExh2 respectively.
14. Although afforded an opportunity to cross-examine the witness, the Appellant did not put any questions to the witness.
15. The complainant testified before the trial court as PW2 and stated that he was a teacher and a resident of Chilchila area. He stated that on 9th June, 2024 he had supper with his colleague Robert Rop (PW3) at the latter’s house and then left at about 2350hrs, and boarded a boda boda which had another pillion passenger on board, and sat between the rider and the passenger.
16. PW2 testified before the trial court that the boda boda rode off and came to a stop approximately 100 metres away at the gate of Chilchila Primary School. It was at that point that he realised he had been pickpocketed of Ksh.2,600/- from the back pocket of his trousers by the pillion passenger. The rider then demanded a fare of Ksh.50/-, and upon reaching the school gate, turned back and increased the demand to Ksh. 100/-.
17. The complainant subsequently paid Ksh.100/- via MPesa by sending the amount to the number 0707****98, which had been provided by the rider. The confirmation message indicated the recipient’s name as Noah Bore. At that point, the complainant informed the rider that the pillion passenger had stolen his money.
18. PW2 further testified that immediately after he sent the fare to the rider, the pillion passenger began assaulting him by slapping him on the back. The rider also turned and pinched the complainant’s left eye, claiming that both he and the pillion passenger were police officers, while the latter remained seated on the boda boda.
19. Sensing danger, the complainant attempted to disembark from the boda boda but was met with kicks and punches to his face and groin from both assailants. In the course of the assault, the pillion passenger forcibly took the complainant’s mobile phone, while the rider demanded that he disclose his M-Pesa PIN, which he refused to do.
20. PW2 further testified before the trial court that at that point, the rider grabbed him by the collar. The complainant pushed the pillion passenger away, causing him to fall, whereupon the latter threatened to kill him. He then managed to free himself from the rider’s grip and fled, but the two men pursued him on the motorcycle and overtook him. Acting instinctively, he turned and took a path leading to the home of Professor Too, prompting the assailants to turn back once more and continue the pursuit.
21. The complainant further stated that he once again turned and ran towards the main road in an attempt to evade the two assailants, who continued to pursue him. As he ran towards his friend’s house while screaming, he noticed that the pillion passenger was armed with a knife. His friend, Robert Rop (PW3), opened the door, allowing the complainant to enter, whereupon the assailants fled in the direction of Fort Ternan. He spent that night at his friend’s place.
22. PW2 explained that during the entire incident, he was able to see the attackers clearly due to the moonlight and the presence of streetlights along certain sections of the road. He stated that his phone was valued at Ksh.17,900/- and identified the purchase receipt for the same (PExh3). He also identified his Mpesa statement (PExh4).
23. The complainant stated that at dawn the following day, he went to Fort Ternan Hospital, where he was examined, treated and discharged. He subsequently reported the incident to the police on 11th June, 2024. His P3 form was subsequently completed on 13th June, 2024.
24. The complainant identified the Appellant, who was present in the dock before the trial court, as one of the assailants who attacked and robbed him.
25. Despite being given the opportunity by the trial court to cross-examine the witness, the Appellant chose not to ask any questions.
26. The third prosecution witness called before the trial court was Robert Rop (PW3), who recounted the events of the evening of 9th June 2024. He told the court that he had taken supper with the complainant at his house, after which the complainant left around 2345hrs for his home.
27. PW3 explained that shortly thereafter, he heard the complainant screaming, claiming that he had been attacked by robbers. PW3 quickly opened the door, allowing the complainant to enter. The witness observed two men outside on a boda boda, who then hurriedly rode off in the direction of Fort Ternan.
28. The witness explained that the complainant had sustained physical injuries to his face, including a swollen eye, and appeared to be in considerable pain. His jacket, which the witness identified in court (PExh5), was torn on the side. The complainant told the witness that the two assailants had stolen Ksh.2,600/- from him and had robbed him of his cell phone. PW3 then invited the complainant to stay at his house that night.
29. PW3 further told the trial court that on the following day, he took the complainant to Fort Ternan Subcounty Hospital where he was treated. He then escorted him to the police station where the complainant formally reported the incident.
30. The Appellant, despite being given the opportunity by the trial court to cross-examine the witness, elected not to ask any questions.
31. Inspector of Police Samwel Karanja testified as PW4, informing the trial court that he received and recorded the complainant’s report at Fort Ternan Police Station on 11th June, 2024. The report stated that on 9th June, 2024 at about 2350hrs, near Chilchila Primary School, the complainant had been attacked, assaulted and robbed of Ksh.2,600 and a cell phone by two assailants. The witness recorded the complainant’s statement and that of his witness (PW3) and took possession of exhibits which included the complainant’s treatment notes (PExh1), P3 form (PExh2), a purchase receipt for the phone (PExh3) and jacket (PExh5).
32. The witness informed the trial court that the number 07******98, registered in the name of Noah Bore and to which the complainant had sent Ksh.100/- at the instruction of one of the assailants, was tracked, and the Appellant was found to be in possession of it. Upon being frisked, the Appellant the complainant’s stolen phone was recovered from the Appellant’s pocket, upon which he was promptly arrested. The complainant identified the phone as the one that had been stolen from him.
33. PW5 further told the trial court that he obtained the complainant’s Mpesa statement from the service provider – Safaricom Limited – and confirmed from the same that the complainant had indeed sent Ksh.100/- to the number 07******98, registered in the name of Noah Bore and which was tracked to the Appellant, and upon which the complainant’s stolen phone was recovered from his pocket.
34. The witness was cross-examined by the Appellant and informed the trial court that the connection between the Appellant and the offence was established by the money sent to him by the complainant, the recovery of the stolen cell phone from the Appellant and the purchase receipt provided by the complainant, which confirmed that the recovered phone belonged to him.
35. On being further cross examined, PW4 explained that the complainant’s P3 form was completed three days after he had received the initial treatment.
36. PW4 further stated that although the purchase price of the complainant’s cell phone was Ksh.17,900/-, the charge sheet indicated the value as Ksh.18,000/- as the complainant had purchased and fixed onto it a screen protector valued at Ksh.100/-.
37. After PW4’s testimony, the complainant was recalled at the prosecution’s request to identify the jacket (PExh5) and his recovered cell phone (PExh6). The Appellant raised no objection to the request, and the complainant returned to court and identified both items.
38. On this occasion, the Appellant cross-examined the complainant, who stated that he had no prior knowledge of the Appellant but confirmed that he recognized him as one of the attackers.
39. The final prosecution witness was Police Corporal Jackson Shiacki (PW5) of Fort Ternan Police Station, who was the arresting officer in the case. He testified that on the night of 12th June, 2024, PW4 requested him to join him and the complainant to apprehend a suspect who had been tracked to the Kacheliba area.
40. PW5 explained that he apprehended the Appellant, who was pointed out by PW4 and the complainant, and proceeded to frisk him, recovering two cell phones from his possession. The complainant identified one of the recovered phones as his stolen property. The Appellant was then taken into police custody.
41. Upon being cross-examined by the Appellant, the witness told the trial court that the Appellant had previously been taken to the police station by his father in connection with an unrelated matter. He further stated that, in the present case, the Appellant was arrested at a hotel where other people were also present. The witness denied requesting Ksh.50,000/- from the Appellant to secure his release.
42. The prosecution case was closed at that stage.
43. In his sworn defence, the Appellant told the trial court that he was a resident of Koisagat area and a farmer by occupation.
44. The Appellant stated that the P3 form that the prosecution produced was completed on 13th June, 2023 yet the offence was allegedly committed on 9th June, 2024, a year later, which he claimed was not possible. However, my perusal of the document, which is in the trial court’s record that is before me, indicates the date that the P3 form was completed, stamped and signed as 13th June, 2024.
45. The Appellant further challenged the prosecution evidence on the value of the complainant’s cell phone, stating that the prosecution witnesses stated that it was valued at Ksh.18,000/- yet the purchase receipt indicated Ksh.17,900/-, which he claimed was contradictory evidence.
46. On being cross examined, the Appellant stated that he was at his home with his two brothers and parents on 9th June, 2024, whom he stated he would call as his witnesses. The record of the trial court however bears it that he opted to close his case without calling any witnesses.
E. THE TRIAL COURT’S FINDINGS.
47. Upon the close of the trial, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, rendered himself as follows, in his judgement delivered on 26th September, 2024:
“Turning to the issues for determination, having read the sections of the law under which the accused person is charged, I find that on the main count, of robbery with violence contrary to section 296 (2) of the Penal code it was the burden of the prosecution to prove three things: First, that something was stolen from the complainant; second, that it was stolen by the accused person and; third, that the accused person used violence in order to obtain or retain the thing stolen.
The thing stolen, as already captured in the summary above, was an infinix phone note 12 play as well as Kshs. 2,600/= in cash and I find that there is overwhelming and uncontroverted evidence from the prosecution witnesses that the same were indeed stolen from the complainant.
The complainant, in his oral testimony, gave the primary evidence of how the phone was forcefully taken from him and Pw3, who was with him a few minutes prior to the theft, confirmed that when the complainant left his house he had his phone but when he returned the same was missing. Both their testimonies were not challenged by way of cross examination and the court in its part, having observed both pw2 and pw3, formed the impression that the said witnesses were straightforward and objective hence believable.
There is therefore no doubts whatsoever in my mind that the complainant’s phone and cash was stolen and I find so.
On the second issue, whether it is the accused person who stole the phone and cash, I similarly find, based on the evidence on record, that there can be no doubt that it is the accused who did so.
Once again the primary evidence implicating him came from the complainant who was firm, throughout his testimony, that he had been able, with the aid of moonlight and light from his phone, to see the features of the people who attacked him and he was categorical that it was the accused person herein acting together with another who is yet to be arrested. Pw3, who opened the door for the complainant when he heard the complainant’s distress call was equally firm that by the same moonlight he had been able to see two people on a motorbike behind the complainant and that one of the persons was the accused herein.
The icing on the cake however comes from the fact that the accused person was found in possession of the phone which had been reported by the complainant as stolen and it is worth noting that in addition to the complainant, who is a civilian, two police officers were also present during the recovery and were, in fact, the ones who searched the accused person leading to the recovery of the said phone.
I have combed the evidence in search of anything that would suggest that their existed prior grudges or differences between the accused and, either the complainant or, the police officers and having found none I am led to the conclusion that all the said witnesses acted without bias and were truthful when they recounted how they recovered the phone from the accused.
The accused’s averments that he did not have the phone are therefore, to my mind, mere denials without any substance to support it.
As was stated by the court of appeal in the case of David Kanyoro & Another vs R Cr. Appeal No.265/2005 (unreported):
“The position in law is that a person found in recent possession of property reported as stolen is presumed to be the thief of it unless he gives a reasonable explanation as to how he came to be in possession thereof.”
The accused, in the present instance, has offered no explanation as to how he came into possession of the subject phone and therefore, drawing from the above decision, I find him to be the thief thereof.
The final issue, whether the accused person used violence in order to obtain or retain the phone and cash, is answered by the evidence of the medical officer (Pw1) who upon examining the complainant found that the complainant had injuries to his left eye and private parts. The said evidence tallies, and corroborates, the evidence given by the complainant that the accused and his accomplice had assaulted him in the course of stealing the phone and cash and is further corroborated by the evidence of PW3 that when he was letting the complainant into the house, after hearing the complainant’s distress call, he saw that the complainant had an injury to his left eye.
On the other assertions by the accused attacking the prosecution’s evidence I find as follows. First, on the P3 produced as Pexh.1, I find that the date of the incident is recorded as 9th June 2024; the date of reporting to the police as 11th June 2024 and; the date of issuance of the P3 as 13th June 2024 which are all chronologically in tandem with the testimonies of the prosecution witnesses.
On the second issue, of the Safaricom mini-statement, I will concur with the accused that it would have been ideal to have someone in the employ of Safaricom come and produce the same but that lapse, in calling an agent from Safaricom, is not fatal for the simple reason that in the final analysis of this matter the court found the evidence from the mini statement to be, at best, tangential to the determination of the accused’s culpability. As highlighted in the preceding paragraphs of this judgment, what pinned the accused to the crime is his identification by the complainant and Pw3 as well as the fact that he was found in actual possession of the phone reported, by the complainant, as stolen.
In the end therefore, I find that the prosecution has proved its case as against the accused person on the main charge of robbery with violence contrary to section 29 (2) of the Penal Code and accordingly convict the accused person of that offence.”
48. With the above, the trial court went on to find that the prosecution had proved the offence of robbery with violence against the Appellant beyond reasonable doubt and proceeded to convict him in line with Section 215 of the Criminal Procedure Code.
49. The instant appeal was canvassed by way of written submissions.
F. THE APPELLANT’S SUBMISSIONS.
50. The Appellant contended that the trial court erred in convicting him based on identification evidence that was neither reliable nor carefully tested. He submitted that the incident occurred at approximately 11:50 PM under poor lighting conditions, with only intermittent moonlight and some streetlights. He argued that the prosecution witnesses could not have positively identified the pillion passenger from behind a moving motorcycle at a distance of over 30 metres, and that fleeting observations could not support a conviction.
51. The Appellant further noted that witnesses failed to describe the relative positions or distances from which they claimed to have observed him, raising serious doubts about the accuracy of their identification. He relied on the cases of James Chege Wanja & Another v Republic [2014] eKLR, Wamunga v Republic [1989] KLR 242, Maitanyi v Republic [1986] eKLR and Francis Kariuki Njira & 7 Others v Republic CR Appeal No. 6 of 2000 (UR) to emphasize that identification evidence under adverse conditions must be subjected to rigorous scrutiny before being relied upon for conviction.
52. The Appellant argued that the trial court wrongly relied on circumstantial evidence under the doctrine of recent possession, which was not proved beyond a reasonable doubt. He highlighted procedural irregularities, including the absence of a signed inventory to verify recovery of the alleged stolen phone and the lack of independent witnesses.
53. The Appellant emphasized that PW2, the complainant, was not independent and may have had a motive to implicate him, and further alleged that police officers attempted to extort Ksh.50,000/- from him, creating a potential incentive for fabrication. He also pointed to discrepancies in the phone’s receipt, including mismatched dates and values between the receipt and the charge sheet and the failure to call the Safaricom liaison officer to verify the M-Pesa transaction.
54. Moreover, the Appellant argued that the phone was not properly marked as an exhibit before being tendered, compromising the integrity of the evidence. He relied on the cases of Abanga Onyango v Republic CR Appeal No. 3 of 1990, Sawe v Republic [2003] KLR 364 and Letur Teper v The Queen 1952 20 H.C. 48 to stress that circumstantial evidence must be closely examined and corroborated to eliminate reasonable doubt.
55. The Appellant submitted that the trial court failed to consider that he did not understand the language used by several prosecution witnesses, which impaired his ability to participate fully in the trial. He stated that he best understood Dholuo, whereas witnesses testified in English and Kiswahili without interpretation. As a result, he was unable to cross-examine PW1, PW2 and PW3, which prejudiced his right to a fair trial and contravened the principles of the adversarial system.
56. The Appellant further contended that the trial court did not properly assess his alibi defence. The Appellant asserted that he was at home at the material time and did not participate in the alleged robbery. He emphasized that the recovered phone was never found in his possession and that he was framed by both the complainant and the police officers, allegedly in an attempt to extort money. He argued that the alibi, combined with the deficiencies in the prosecution’s evidence, clearly created reasonable doubt as to his guilt.
57. Finally, the Appellant submitted that the trial court erred in denying him the minimum sentence to which he was entitled under law. He relied on Articles 25(c) and 50(2) of the Constitution, arguing that the sentence imposed violated his constitutional rights to fair treatment, proportionality and due process.
G. THE RESPONDENT’S SUBMISSIONS.
58. The Respondent submitted that the prosecution proved the theft of the complainant’s property beyond reasonable doubt. The Respondent stated that PW2, Hassan Kiprotich, testified that on the night of 9th June, 2024, while riding on a motorcycle, he was sandwiched between the rider and the Appellant, who was the pillion passenger. During the ride, the Appellant took Kshs. 2,600 from his back pocket, forced him to send Ksh.100/- via M-Pesa to the rider’s phone, and subsequently snatched his Infinix Note 12 Play phone.
59. The Respondent further submitted that PW3, Robert Rop, corroborated the testimony of PW2 by stating that the complainant returned home shortly after the incident without his phone, visibly injured and distressed, with a torn jacket and that PW4, Inspector Samuel Karanja, produced documentary evidence of the complainant’s ownership of the phone (purchase receipt PExh3) and certified M-Pesa statements (PExh 4a and 4b) showing the coerced transaction and further that PW5, Corporal Jackson Shiachi, confirmed that two phones were recovered from the Appellant, one of which the complainant immediately identified as his stolen phone.
60. The Respondent stated in its submissions that the Appellant never challenged the fact of theft during cross-examination, leaving the prosecution’s evidence on this element uncontroverted.
61. On the issue of identification of the Appellant as one of the robbers, the position of the Respondent was that his identity was properly established. The Respondent’s contention was that PW2 testified that he clearly saw the Appellant under moonlight, streetlights and light from his own phone while being robbed and that he directly identified the Appellant in court.
62. The Respondent submitted that PW3 provided independent corroboration, observing the fleeing suspects on a motorcycle approximately 30 meters away and identifying the Appellant as the pillion passenger.
63. The Respondent emphasized that PW3’s testimony was unchallenged during cross-examination, strengthening the identification evidence and that the subsequent recovery of the stolen phone from the Appellant within three days of the robbery further confirmed his involvement. The Respondent urged that the Appellant did not provide any plausible explanation for how he came into possession of the stolen phone, and his bare denial could not undermine the identification evidence. The Respondent submitted that the doctrine of recent possession was lawfully applied as the conditions thereof were satisfied, in that the property was found with the Appellant, positively identified as the complainant’s stolen property and recovered recently, adding that the recovery was made during a lawful search at the time of arrest, with no break in the chain of custody.
64. The Respondent cited the case of Erick Otieno Arum v Republic [2006] KECA 385 (KLR) to emphasize that once all conditions were satisfied, a presumption of guilt arises.
65. The Respondent submitted that the prosecution proved that violence was used to facilitate the robbery, satisfying Section 296(2) of the Penal Code. The Respondent stated that PW2 testified that the Appellant assaulted him, tore his jacket and left him injured on the head and genital area, while forcing him to make the M-Pesa transfer and that PW1, Kibyegon Alex Ngetich, a clinical officer, examined the complainant and confirmed periorbital swelling, conjunctival redness, cuts on the genital region and scrotal swelling, which were consistent with blunt-force injuries, while PW3 observed the complainant’s injuries when he returned home immediately after the attack.
66. The Respondent placed reliance on legal precedent, including gthe cases of Angoga v Republic [2024] KECA 132 (KLR) and Oluoch v Republic [1985] KLR 549, in support of the position that actual physical harm alone is sufficient to establish robbery with violence. The Respondent stressed that all statutory elements were present – the Appellant acted with another person, inflicted violence and stole property.
67. The Respondent submitted that the alibi defence raised by the Appellant was effectively displaced, in that whereas the Appellant claimed to have been at home during the robbery and suggested that police fabricated evidence, he did not call any corroborating witnesses or produce any other proof. The Respondent submitted further that the prosecution evidence, including direct identification by PW2, independent corroboration by PW3 and recovery of the stolen phone from the Appellant’s possession, collectively negated the alibi. The Respondent emphasized that the Appellant’s denial, without cr
[...truncated]
1. Kelvin Cheruiyot (hereinafter referred to as “the Appellant”) was charged before the trial court with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
2. It was stated in the particulars of the offence that on 9th of June, 2024 at about 2350hrs near Chilchila Primary School, at Fort Ternan area in Kipkelion West Subcounty within Kericho County, jointly with others not before the trial court, the Appellant robbed Hassan Kiprotich (hereinafter referred to as “the complainant”) of one cell phone make Infinix Note 12 Play valued at Ksh.18,000/- and Ksh.2,600/- cash.
3. In the alternative count, the Appellant was charged with the offence of handling stolen goods contrary to Section 322(1) as read with 322(2) of the Penal Code, Cap 63 Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on the 9th day of June, 2024 at around 2350hrs near Chilchila Primary School at Fort Ternan area in Kipkelion West Subcounty within Kericho County, the Appellant was found to be in possession of one cell phone make Infinix Note 12 Play valued at Ksh.18,000/-, the property of Hassan Kiprotich.
5. The Appellant denied the charges, which then called for a full trial.
6. The prosecution case was founded on the evidence of 5 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 3rd October, 2024. The Appellant filed supplementary grounds of appeal dated 14th March, 2025. The grounds of appeal may be summarized as follows:
1. Insufficient evidence and/or unproven ingredients of the offence:
- The learned trial Magistrate erred in law and fact by convicting the Appellant when the ingredients of the offence were not proved to the required standard.
- The learned trial Magistrate erred in law by relying on prosecution case/evidence that contained inconsistencies, contradictions and gaps making the evidence unreliable.
- The learned trial Magistrate erred in law by failing to address conflicting, irrelevant and/or contradictory evidence.
2. Identification evidence issues:
- The learned trial Magistrate erred in law in convicting the Appellant by relying on identification evidence that was inconclusive.
3. Doctrine of recent possession misapplied:
- The learned trial Magistrate erred in applying the doctrine of recent possession when its ingredients were not proved beyond reasonable doubt.
4. Procedural irregularities and/or fatal defects in evidence:
- The learned trial Magistrate erred in failing to ascertain that the proceedings were conducted in a language that the Appellant understood.
- The learned trial Magistrate erred in convicting the Appellant by relying on evidence that the Appellant was not afforded an opportunity to test through cross-examination.
5. Sentencing and/or fair trial rights:
- Denial of the Appellant’s right to the least prescribed sentence, violating Articles 25(c) and 50(2)(p) of the Constitution, leading to an unfair trial.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
11. Now to the record of the trial court, the prosecution called Kibyegon Alex Ng’etich, a registered clinical officer who worked at Fort Ternan Subcounty Hospital, as PW1, who testified and told the trial court that the complainant was attended to and treated at the facility on 13th June, 2024, where he presented a history of having been attacked and assaulted by persons known to him. He had received initial treatment at the facility on 10th June, 2024.
12. PW1 told the trial court that he attended to and treated the complainant, whose neck and head had left periorbital swelling with hyperemic reddish conjunctiva of the left eye. The complainant also had a cut and swelling on the glans penis shaft junction and left testicular swelling was noted.
13. The witness documented his findings in treatment notes and a P3 form that he produced as PExh1 and PExh2 respectively.
14. Although afforded an opportunity to cross-examine the witness, the Appellant did not put any questions to the witness.
15. The complainant testified before the trial court as PW2 and stated that he was a teacher and a resident of Chilchila area. He stated that on 9th June, 2024 he had supper with his colleague Robert Rop (PW3) at the latter’s house and then left at about 2350hrs, and boarded a boda boda which had another pillion passenger on board, and sat between the rider and the passenger.
16. PW2 testified before the trial court that the boda boda rode off and came to a stop approximately 100 metres away at the gate of Chilchila Primary School. It was at that point that he realised he had been pickpocketed of Ksh.2,600/- from the back pocket of his trousers by the pillion passenger. The rider then demanded a fare of Ksh.50/-, and upon reaching the school gate, turned back and increased the demand to Ksh. 100/-.
17. The complainant subsequently paid Ksh.100/- via MPesa by sending the amount to the number 0707****98, which had been provided by the rider. The confirmation message indicated the recipient’s name as Noah Bore. At that point, the complainant informed the rider that the pillion passenger had stolen his money.
18. PW2 further testified that immediately after he sent the fare to the rider, the pillion passenger began assaulting him by slapping him on the back. The rider also turned and pinched the complainant’s left eye, claiming that both he and the pillion passenger were police officers, while the latter remained seated on the boda boda.
19. Sensing danger, the complainant attempted to disembark from the boda boda but was met with kicks and punches to his face and groin from both assailants. In the course of the assault, the pillion passenger forcibly took the complainant’s mobile phone, while the rider demanded that he disclose his M-Pesa PIN, which he refused to do.
20. PW2 further testified before the trial court that at that point, the rider grabbed him by the collar. The complainant pushed the pillion passenger away, causing him to fall, whereupon the latter threatened to kill him. He then managed to free himself from the rider’s grip and fled, but the two men pursued him on the motorcycle and overtook him. Acting instinctively, he turned and took a path leading to the home of Professor Too, prompting the assailants to turn back once more and continue the pursuit.
21. The complainant further stated that he once again turned and ran towards the main road in an attempt to evade the two assailants, who continued to pursue him. As he ran towards his friend’s house while screaming, he noticed that the pillion passenger was armed with a knife. His friend, Robert Rop (PW3), opened the door, allowing the complainant to enter, whereupon the assailants fled in the direction of Fort Ternan. He spent that night at his friend’s place.
22. PW2 explained that during the entire incident, he was able to see the attackers clearly due to the moonlight and the presence of streetlights along certain sections of the road. He stated that his phone was valued at Ksh.17,900/- and identified the purchase receipt for the same (PExh3). He also identified his Mpesa statement (PExh4).
23. The complainant stated that at dawn the following day, he went to Fort Ternan Hospital, where he was examined, treated and discharged. He subsequently reported the incident to the police on 11th June, 2024. His P3 form was subsequently completed on 13th June, 2024.
24. The complainant identified the Appellant, who was present in the dock before the trial court, as one of the assailants who attacked and robbed him.
25. Despite being given the opportunity by the trial court to cross-examine the witness, the Appellant chose not to ask any questions.
26. The third prosecution witness called before the trial court was Robert Rop (PW3), who recounted the events of the evening of 9th June 2024. He told the court that he had taken supper with the complainant at his house, after which the complainant left around 2345hrs for his home.
27. PW3 explained that shortly thereafter, he heard the complainant screaming, claiming that he had been attacked by robbers. PW3 quickly opened the door, allowing the complainant to enter. The witness observed two men outside on a boda boda, who then hurriedly rode off in the direction of Fort Ternan.
28. The witness explained that the complainant had sustained physical injuries to his face, including a swollen eye, and appeared to be in considerable pain. His jacket, which the witness identified in court (PExh5), was torn on the side. The complainant told the witness that the two assailants had stolen Ksh.2,600/- from him and had robbed him of his cell phone. PW3 then invited the complainant to stay at his house that night.
29. PW3 further told the trial court that on the following day, he took the complainant to Fort Ternan Subcounty Hospital where he was treated. He then escorted him to the police station where the complainant formally reported the incident.
30. The Appellant, despite being given the opportunity by the trial court to cross-examine the witness, elected not to ask any questions.
31. Inspector of Police Samwel Karanja testified as PW4, informing the trial court that he received and recorded the complainant’s report at Fort Ternan Police Station on 11th June, 2024. The report stated that on 9th June, 2024 at about 2350hrs, near Chilchila Primary School, the complainant had been attacked, assaulted and robbed of Ksh.2,600 and a cell phone by two assailants. The witness recorded the complainant’s statement and that of his witness (PW3) and took possession of exhibits which included the complainant’s treatment notes (PExh1), P3 form (PExh2), a purchase receipt for the phone (PExh3) and jacket (PExh5).
32. The witness informed the trial court that the number 07******98, registered in the name of Noah Bore and to which the complainant had sent Ksh.100/- at the instruction of one of the assailants, was tracked, and the Appellant was found to be in possession of it. Upon being frisked, the Appellant the complainant’s stolen phone was recovered from the Appellant’s pocket, upon which he was promptly arrested. The complainant identified the phone as the one that had been stolen from him.
33. PW5 further told the trial court that he obtained the complainant’s Mpesa statement from the service provider – Safaricom Limited – and confirmed from the same that the complainant had indeed sent Ksh.100/- to the number 07******98, registered in the name of Noah Bore and which was tracked to the Appellant, and upon which the complainant’s stolen phone was recovered from his pocket.
34. The witness was cross-examined by the Appellant and informed the trial court that the connection between the Appellant and the offence was established by the money sent to him by the complainant, the recovery of the stolen cell phone from the Appellant and the purchase receipt provided by the complainant, which confirmed that the recovered phone belonged to him.
35. On being further cross examined, PW4 explained that the complainant’s P3 form was completed three days after he had received the initial treatment.
36. PW4 further stated that although the purchase price of the complainant’s cell phone was Ksh.17,900/-, the charge sheet indicated the value as Ksh.18,000/- as the complainant had purchased and fixed onto it a screen protector valued at Ksh.100/-.
37. After PW4’s testimony, the complainant was recalled at the prosecution’s request to identify the jacket (PExh5) and his recovered cell phone (PExh6). The Appellant raised no objection to the request, and the complainant returned to court and identified both items.
38. On this occasion, the Appellant cross-examined the complainant, who stated that he had no prior knowledge of the Appellant but confirmed that he recognized him as one of the attackers.
39. The final prosecution witness was Police Corporal Jackson Shiacki (PW5) of Fort Ternan Police Station, who was the arresting officer in the case. He testified that on the night of 12th June, 2024, PW4 requested him to join him and the complainant to apprehend a suspect who had been tracked to the Kacheliba area.
40. PW5 explained that he apprehended the Appellant, who was pointed out by PW4 and the complainant, and proceeded to frisk him, recovering two cell phones from his possession. The complainant identified one of the recovered phones as his stolen property. The Appellant was then taken into police custody.
41. Upon being cross-examined by the Appellant, the witness told the trial court that the Appellant had previously been taken to the police station by his father in connection with an unrelated matter. He further stated that, in the present case, the Appellant was arrested at a hotel where other people were also present. The witness denied requesting Ksh.50,000/- from the Appellant to secure his release.
42. The prosecution case was closed at that stage.
43. In his sworn defence, the Appellant told the trial court that he was a resident of Koisagat area and a farmer by occupation.
44. The Appellant stated that the P3 form that the prosecution produced was completed on 13th June, 2023 yet the offence was allegedly committed on 9th June, 2024, a year later, which he claimed was not possible. However, my perusal of the document, which is in the trial court’s record that is before me, indicates the date that the P3 form was completed, stamped and signed as 13th June, 2024.
45. The Appellant further challenged the prosecution evidence on the value of the complainant’s cell phone, stating that the prosecution witnesses stated that it was valued at Ksh.18,000/- yet the purchase receipt indicated Ksh.17,900/-, which he claimed was contradictory evidence.
46. On being cross examined, the Appellant stated that he was at his home with his two brothers and parents on 9th June, 2024, whom he stated he would call as his witnesses. The record of the trial court however bears it that he opted to close his case without calling any witnesses.
E. THE TRIAL COURT’S FINDINGS.
47. Upon the close of the trial, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, rendered himself as follows, in his judgement delivered on 26th September, 2024:
“Turning to the issues for determination, having read the sections of the law under which the accused person is charged, I find that on the main count, of robbery with violence contrary to section 296 (2) of the Penal code it was the burden of the prosecution to prove three things: First, that something was stolen from the complainant; second, that it was stolen by the accused person and; third, that the accused person used violence in order to obtain or retain the thing stolen.
The thing stolen, as already captured in the summary above, was an infinix phone note 12 play as well as Kshs. 2,600/= in cash and I find that there is overwhelming and uncontroverted evidence from the prosecution witnesses that the same were indeed stolen from the complainant.
The complainant, in his oral testimony, gave the primary evidence of how the phone was forcefully taken from him and Pw3, who was with him a few minutes prior to the theft, confirmed that when the complainant left his house he had his phone but when he returned the same was missing. Both their testimonies were not challenged by way of cross examination and the court in its part, having observed both pw2 and pw3, formed the impression that the said witnesses were straightforward and objective hence believable.
There is therefore no doubts whatsoever in my mind that the complainant’s phone and cash was stolen and I find so.
On the second issue, whether it is the accused person who stole the phone and cash, I similarly find, based on the evidence on record, that there can be no doubt that it is the accused who did so.
Once again the primary evidence implicating him came from the complainant who was firm, throughout his testimony, that he had been able, with the aid of moonlight and light from his phone, to see the features of the people who attacked him and he was categorical that it was the accused person herein acting together with another who is yet to be arrested. Pw3, who opened the door for the complainant when he heard the complainant’s distress call was equally firm that by the same moonlight he had been able to see two people on a motorbike behind the complainant and that one of the persons was the accused herein.
The icing on the cake however comes from the fact that the accused person was found in possession of the phone which had been reported by the complainant as stolen and it is worth noting that in addition to the complainant, who is a civilian, two police officers were also present during the recovery and were, in fact, the ones who searched the accused person leading to the recovery of the said phone.
I have combed the evidence in search of anything that would suggest that their existed prior grudges or differences between the accused and, either the complainant or, the police officers and having found none I am led to the conclusion that all the said witnesses acted without bias and were truthful when they recounted how they recovered the phone from the accused.
The accused’s averments that he did not have the phone are therefore, to my mind, mere denials without any substance to support it.
As was stated by the court of appeal in the case of David Kanyoro & Another vs R Cr. Appeal No.265/2005 (unreported):
“The position in law is that a person found in recent possession of property reported as stolen is presumed to be the thief of it unless he gives a reasonable explanation as to how he came to be in possession thereof.”
The accused, in the present instance, has offered no explanation as to how he came into possession of the subject phone and therefore, drawing from the above decision, I find him to be the thief thereof.
The final issue, whether the accused person used violence in order to obtain or retain the phone and cash, is answered by the evidence of the medical officer (Pw1) who upon examining the complainant found that the complainant had injuries to his left eye and private parts. The said evidence tallies, and corroborates, the evidence given by the complainant that the accused and his accomplice had assaulted him in the course of stealing the phone and cash and is further corroborated by the evidence of PW3 that when he was letting the complainant into the house, after hearing the complainant’s distress call, he saw that the complainant had an injury to his left eye.
On the other assertions by the accused attacking the prosecution’s evidence I find as follows. First, on the P3 produced as Pexh.1, I find that the date of the incident is recorded as 9th June 2024; the date of reporting to the police as 11th June 2024 and; the date of issuance of the P3 as 13th June 2024 which are all chronologically in tandem with the testimonies of the prosecution witnesses.
On the second issue, of the Safaricom mini-statement, I will concur with the accused that it would have been ideal to have someone in the employ of Safaricom come and produce the same but that lapse, in calling an agent from Safaricom, is not fatal for the simple reason that in the final analysis of this matter the court found the evidence from the mini statement to be, at best, tangential to the determination of the accused’s culpability. As highlighted in the preceding paragraphs of this judgment, what pinned the accused to the crime is his identification by the complainant and Pw3 as well as the fact that he was found in actual possession of the phone reported, by the complainant, as stolen.
In the end therefore, I find that the prosecution has proved its case as against the accused person on the main charge of robbery with violence contrary to section 29 (2) of the Penal Code and accordingly convict the accused person of that offence.”
48. With the above, the trial court went on to find that the prosecution had proved the offence of robbery with violence against the Appellant beyond reasonable doubt and proceeded to convict him in line with Section 215 of the Criminal Procedure Code.
49. The instant appeal was canvassed by way of written submissions.
F. THE APPELLANT’S SUBMISSIONS.
50. The Appellant contended that the trial court erred in convicting him based on identification evidence that was neither reliable nor carefully tested. He submitted that the incident occurred at approximately 11:50 PM under poor lighting conditions, with only intermittent moonlight and some streetlights. He argued that the prosecution witnesses could not have positively identified the pillion passenger from behind a moving motorcycle at a distance of over 30 metres, and that fleeting observations could not support a conviction.
51. The Appellant further noted that witnesses failed to describe the relative positions or distances from which they claimed to have observed him, raising serious doubts about the accuracy of their identification. He relied on the cases of James Chege Wanja & Another v Republic [2014] eKLR, Wamunga v Republic [1989] KLR 242, Maitanyi v Republic [1986] eKLR and Francis Kariuki Njira & 7 Others v Republic CR Appeal No. 6 of 2000 (UR) to emphasize that identification evidence under adverse conditions must be subjected to rigorous scrutiny before being relied upon for conviction.
52. The Appellant argued that the trial court wrongly relied on circumstantial evidence under the doctrine of recent possession, which was not proved beyond a reasonable doubt. He highlighted procedural irregularities, including the absence of a signed inventory to verify recovery of the alleged stolen phone and the lack of independent witnesses.
53. The Appellant emphasized that PW2, the complainant, was not independent and may have had a motive to implicate him, and further alleged that police officers attempted to extort Ksh.50,000/- from him, creating a potential incentive for fabrication. He also pointed to discrepancies in the phone’s receipt, including mismatched dates and values between the receipt and the charge sheet and the failure to call the Safaricom liaison officer to verify the M-Pesa transaction.
54. Moreover, the Appellant argued that the phone was not properly marked as an exhibit before being tendered, compromising the integrity of the evidence. He relied on the cases of Abanga Onyango v Republic CR Appeal No. 3 of 1990, Sawe v Republic [2003] KLR 364 and Letur Teper v The Queen 1952 20 H.C. 48 to stress that circumstantial evidence must be closely examined and corroborated to eliminate reasonable doubt.
55. The Appellant submitted that the trial court failed to consider that he did not understand the language used by several prosecution witnesses, which impaired his ability to participate fully in the trial. He stated that he best understood Dholuo, whereas witnesses testified in English and Kiswahili without interpretation. As a result, he was unable to cross-examine PW1, PW2 and PW3, which prejudiced his right to a fair trial and contravened the principles of the adversarial system.
56. The Appellant further contended that the trial court did not properly assess his alibi defence. The Appellant asserted that he was at home at the material time and did not participate in the alleged robbery. He emphasized that the recovered phone was never found in his possession and that he was framed by both the complainant and the police officers, allegedly in an attempt to extort money. He argued that the alibi, combined with the deficiencies in the prosecution’s evidence, clearly created reasonable doubt as to his guilt.
57. Finally, the Appellant submitted that the trial court erred in denying him the minimum sentence to which he was entitled under law. He relied on Articles 25(c) and 50(2) of the Constitution, arguing that the sentence imposed violated his constitutional rights to fair treatment, proportionality and due process.
G. THE RESPONDENT’S SUBMISSIONS.
58. The Respondent submitted that the prosecution proved the theft of the complainant’s property beyond reasonable doubt. The Respondent stated that PW2, Hassan Kiprotich, testified that on the night of 9th June, 2024, while riding on a motorcycle, he was sandwiched between the rider and the Appellant, who was the pillion passenger. During the ride, the Appellant took Kshs. 2,600 from his back pocket, forced him to send Ksh.100/- via M-Pesa to the rider’s phone, and subsequently snatched his Infinix Note 12 Play phone.
59. The Respondent further submitted that PW3, Robert Rop, corroborated the testimony of PW2 by stating that the complainant returned home shortly after the incident without his phone, visibly injured and distressed, with a torn jacket and that PW4, Inspector Samuel Karanja, produced documentary evidence of the complainant’s ownership of the phone (purchase receipt PExh3) and certified M-Pesa statements (PExh 4a and 4b) showing the coerced transaction and further that PW5, Corporal Jackson Shiachi, confirmed that two phones were recovered from the Appellant, one of which the complainant immediately identified as his stolen phone.
60. The Respondent stated in its submissions that the Appellant never challenged the fact of theft during cross-examination, leaving the prosecution’s evidence on this element uncontroverted.
61. On the issue of identification of the Appellant as one of the robbers, the position of the Respondent was that his identity was properly established. The Respondent’s contention was that PW2 testified that he clearly saw the Appellant under moonlight, streetlights and light from his own phone while being robbed and that he directly identified the Appellant in court.
62. The Respondent submitted that PW3 provided independent corroboration, observing the fleeing suspects on a motorcycle approximately 30 meters away and identifying the Appellant as the pillion passenger.
63. The Respondent emphasized that PW3’s testimony was unchallenged during cross-examination, strengthening the identification evidence and that the subsequent recovery of the stolen phone from the Appellant within three days of the robbery further confirmed his involvement. The Respondent urged that the Appellant did not provide any plausible explanation for how he came into possession of the stolen phone, and his bare denial could not undermine the identification evidence. The Respondent submitted that the doctrine of recent possession was lawfully applied as the conditions thereof were satisfied, in that the property was found with the Appellant, positively identified as the complainant’s stolen property and recovered recently, adding that the recovery was made during a lawful search at the time of arrest, with no break in the chain of custody.
64. The Respondent cited the case of Erick Otieno Arum v Republic [2006] KECA 385 (KLR) to emphasize that once all conditions were satisfied, a presumption of guilt arises.
65. The Respondent submitted that the prosecution proved that violence was used to facilitate the robbery, satisfying Section 296(2) of the Penal Code. The Respondent stated that PW2 testified that the Appellant assaulted him, tore his jacket and left him injured on the head and genital area, while forcing him to make the M-Pesa transfer and that PW1, Kibyegon Alex Ngetich, a clinical officer, examined the complainant and confirmed periorbital swelling, conjunctival redness, cuts on the genital region and scrotal swelling, which were consistent with blunt-force injuries, while PW3 observed the complainant’s injuries when he returned home immediately after the attack.
66. The Respondent placed reliance on legal precedent, including gthe cases of Angoga v Republic [2024] KECA 132 (KLR) and Oluoch v Republic [1985] KLR 549, in support of the position that actual physical harm alone is sufficient to establish robbery with violence. The Respondent stressed that all statutory elements were present – the Appellant acted with another person, inflicted violence and stole property.
67. The Respondent submitted that the alibi defence raised by the Appellant was effectively displaced, in that whereas the Appellant claimed to have been at home during the robbery and suggested that police fabricated evidence, he did not call any corroborating witnesses or produce any other proof. The Respondent submitted further that the prosecution evidence, including direct identification by PW2, independent corroboration by PW3 and recovery of the stolen phone from the Appellant’s possession, collectively negated the alibi. The Respondent emphasized that the Appellant’s denial, without cr
[...truncated]