(Being an Appeal against the Conviction and Sentence of the Hon. S.N. Mutava, Senior Resident Magistrate, delivered on 27 th day of November, 2025, in the Senior Principal Magistrates Court at Rongo in Criminal Case No. E226 of 2025]
JUDGMENT
INTRODUCTION
1. The appellant was charged with three counts namely; robbery with violence contrary to Section 296(2) of the Penal Code and two counts of assault causing actual bodily harm contrary to Section 251 of the Penal Code . He was charged in Rongo Principal Magistrate’s Court Criminal Case No. E226 of 2025. The accused denied all the charges.
2. The learned magistrate conducted trial and in the end the accused was convicted of robbery with violence contrary to Section 296(2) of the Penal Code, second count (2) of Assault causing actual bodily harm and count 3 of Assault causing actual bodily harm country to Section 251 of the Penal Code . The appellant was sentenced to life imprisonment for the offence of robbery with violence. On the 2 nd & 3 rd counts the appellant was sentenced to serve three-year imprisonment on each count which shall run concurrently.
3. The appellant was dissatisfied with the conviction and sentence. He filed this appeal which was based on the following grounds:
(1) That I did not plead guilty to the above appended charge(s)
(2) That the trial magistrate erred both in law and fact in convicting me without considering that the evidence tendered was uncorroborated, fabricated, inconsistent, discredited, malicious and cannot stand the dictates of the law.
(3) That the trial court failed to note that the prosecution witnesses coached themselves to fabricate the charge and pin it with the same to settle scores which are family based.
(4) That the trial court erred both in law and fact when it convicted me without considering that the evidence tendered were from the same family members yet according to their testimony, they raised alarm which attracted other independent witnesses who would have come to give account of the alleged incident and shed more light on the prosecution’s case.
(5) That the circumstances prevailing at the time of the alleged robbery did not favour positive identification.
(6) That I was not found with the said property which was allegedly robbed off from the complainant.
(7) That there was no proof of ownership of the said animals, or money the complainant said he had.
(8) That I was not positively identified with clothing or any other physical appearance.
(9) That the medical report failed to meet the threshold of the law.
(10) That there was no sufficient lighting which enabled the complainants to positively identify the assailants.
(11) That the trial court failed in law and fact by rejecting my alibi defence which created reasonable doubt on the prosecution’s case.
(12) That my mitigation was not considered considering the harsh sentence awarded.
(13) That more grounds will be adduced when I get the lower court proceedings.
(14) That the learned trial magistrate erred in both law and in fact by failing to consider that the sentence imposed on the appellant was manifestly harsh disproportionate and excessive in the circumstance.
(15) That the learned trial magistrate erred in law and in fact by failing to adequately consider the appellant’s defence.
(16) That the learned trial magistrate erred in law and in fact in finding that the prosecution had proved its case beyond reasonable doubt.
(17) That the learned trial magistrate failed in law and in fact by disregarding the appellant submission and arguments therein.
4. It was the Appellant’s prayer that this Appeal be allowed, conviction quashed and sentence set aside and that he be set at liberty. The respondent opposed the appeal stating that it lacked merit and urged the Honourable Court to dismiss it in its entirety.
THE PROSECUTION CASE
5. PW1 testified that on the 24/5/2025 he was asleep at around midnight he heard a bang on the door which woke him up. He testified that his sun king light was also on at the time. He was with his wife Moline Achieng and in the process of asking who it was he suddenly saw the Appellant who had worn a hooded sweater and also had a blue face mask. It was PW1’s testimony that the Appellant tried to cut him when he asked him what was his problem and he only respondent by saying don’t talk. It was his testimony that the Appellant stated that he wanted money and he was in the company of 2 other persons who were strangling his wife. Kelvin again tried to cut PW1 with a panga and PW1 lifted his hand to block being cut with the panga which ended up cutting his hand.
6. His wife shouted and told them where the money was and Kelvin took the money, threw it to his friend who alongside his other friend, and they took off leaving the Appellant to struggle with PW1 who overpowered the said PW1. PW1 was later taken to the hospital for treatment. He further stated that the house was lit, the Appellant’s eyes were not covered and he knows the Appellant rather well, which is for a period of about 14 years. On cross examination PW1 reiterated that the incident occurred at night and the money was from the cows he had previously sold.
7. PW2 testified that he was the wife to PW1. On the day of the incident they were sleeping when they heard a loud bang at the door which woke them up. That PW1 tried to ask who it was but some three men burst into the room and stood next to their bed. The sunking light hanging from the roof was on and she was able to see the Appellant and two other individuals. The Appellant was trying to cut PW1 but PW2 testified that it was first blocked by the curtain, that the other two men were strangling her while chanting that they wanted money, with one of them trying to suffocate her. She showed him where the money was and that is when they let go of her. The Appellant took the money and threw it to his friends who let go of her and took off. It was her evidence that the money had been gotten from the sale of cows. It was also her evidence that she knew the Appellant for a period of 4 years and knew his voice and eyes as he had talked to PW1 that night during the incident.
8. PW3 testified that on the same night he was asleep and he heard noises like someone was shouting for help. When he took his torch and stepped out, he realised that the voices belonged to PW1 & PW2. PW3 testified that he started shouting and when he arrived at the house of PW1 & PW2 he spotted two individuals dressed in black and wearing a mask coming out of PW1’s house. PW3 stated that he tried to pursue them but they took off. He further stated he also saw the Appellant leaving the house and he was able to identify him using the torch he was carrying as he directed the light to the Appellant who was approximately 10 meters away. He testified that he knows the Appellant, his voice and physical structure. He stated that he found PW1 injured and PW2 unconscious and they took them to the Hospital. On cross examination PW3 informed Court that he was aware that PW1 had sold his cows but he wasn’t aware the amount of money that he had in the house.
9. PW4 testified that on the night of the incident he also went to the house of PW3 after hearing noises coming from PW3’s home and found Victor was bleeding and his wife was unconscious. He assisted in taking them to the hospital.
10. PW5 produced 2 sets of P3 Forn and treatment notes for PW1 and PW2. On examination of PW,1 there was a dressing on the left thumb and the middle-left hand. He had been stitched on the 1 st finger and on the left side of the back he had bruises. The Doctor testified that PW1 had been assaulted by a sharp object and the injuries fall in the category of harm. On examining PW2, the clinical officer testified that she had swelling on the neck which was painful, she also had pain in her throat. The degree of the injury was harm.
11. PW6 the investigating officer testified that a report was made on the 24/5/2025 by PW1 who was in the company of his father. That at around 0015hrs some people broke into his house who had gained access by drilling a hole next to the door. That the Complainant informed him that he sleeps with light on and when he was woken up by the noise he identified the Appellant who had carried a panga and was in the company of two others. PW6 testified that the Appellant cut him with the Panga and demanded for the money they had received from selling their cow. The wife informed him where the money was and they picked the money and left. PW6 stated that he visited the scene and he was able to see the hole near the door and produced 5 photos of the scene to support this narrative. He further stated that the Appellant was well known to PW1 and was able to identify him eventually he was arrested and charged. On cross examination he informed court that the witnesses were able to positively identify the Appellant.
12. PW7 a clinical officer examined both PW1 & PW2 on the 24/5/2025 at around midnight and upon conducting examination on PW1 he noted that PW1 was bleeding at the left upper limb. That he had cut wounds at the back and left hand and his limb had a cut. The wounds were stitched and a copy of treatment notes was produced into evidence. On examining PW2 he stated that she came in a semi-conscious state. That he discovered that PW2 had edema at the neck and at the chest. The doctor further testified that PW2 suffered from soft tissue injures and blunt chest trauma. The prosecution case was closed at the stage.
DEFENCE CASE
13. When the accused was placed on his defense he denied committing the offence. He stated that he was home the whole night of 24/5/2025 and only left home the following day on the 25/5/2025 at around 3 P.M. That upon returning he was informed by his mother who was at home that the complainant herein was at their home with three people and they stated that the Appellant had stolen from him. It was his evidence that his wife could confirm that he was at work and on cross examination he stated that his wife was not a witness in the said case.
14. The Appeal was canvased by way of written submissions filed by both parties herein.
15. Having set out the background to the matter, this Court’s duty is to evaluate and scrutinize the evidence and proceedings on record and reach its 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. (See also the case of Okeno vs. Republic [1972] E.A 32)
16. This Court has carefully considered the proceedings before the Trial Court, the Petitions of Appeal, as well as the submissions made by both the Appellant and the Respondent. The issues which arise for determination are:
i. Whether the ingredients of robbery with violence were established?
ii. Whether the ingredients of Assault were established?
iii. Whether the sentence imposed was lawful and constitutional?
17. This is a 1 st appeal and this court has a duty to analyze the evidence adduced before the trial court, evaluate it and come up with its own independent finding. In Okeno -vs- Republic (1972) E.A 32 . The court of Appeal set out the duties of the first appellate court as follows:
“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ( Padya -vs- Republic (1957) E.A 336 ) and the appellate courts own decision on the evidence. The first appellate court must itself weigh the conflicting evidence and draw its own conclusion. Shantilal M. Ruwala -vs- R (1957) E.A 570 . It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own findings and draw its own conclusion; only then can it decide whether the magistrate’s fining should be supported.
In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses .”
18. The Court of Appeal in Kiilu & Another -vs- Republic (2005) 1KLR , appreciated that:
“ 1) An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
2) It is not the function of the 1 st appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. In doing so, it should make allowance for the fact that the trial court had the advantage of having and seeing the witnesses. ”
19. The first appellate court is mandated to consider matters of fact and Law. Section 347(2) of the Criminal Procedure Code provides that:
“An appeal to the High Court may be on a matter of fact as well as on matter of law.”
20. On the first issue, this court borrows from the case Oluoch -vs- Republic (1985) KLR , where it was held that:
“ Robbery with violence is committed in any of the following circumstances:
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. ”
21. The elements are distinctive in nature and the prosecution needs to prove only one as was held in the case of Juma Mohamed Ganzi & 3 Others -vs- Republic Appeal No. 275/2002 .
22. In the present case, the evidence on record demonstrates that all the ingredients were proved. PW1 and PW2 consistently testified that the Appellant was accompanied by two other assailants who forcibly entered their house at night while demanding money. PW1 testified that the Appellant was armed with a panga, with which he attempted to cut him and, in the process, inflicted injuries on his hand. PW2 further testified that the Appellant's accomplices strangled and attempted to suffocate her until she disclosed the location of the money. The assailants thereafter stole the proceeds from the sale of the complainants' cows before fleeing the scene.
23. The medical evidence adduced through PW5 corroborated the complainants' account by confirming that PW1 sustained cut wounds caused by a sharp object, while PW2 suffered neck swelling and throat pain consistent with strangulation, both injuries being assessed as amounting to harm. The evidence of PW3, who responded to the complainants' distress calls and observed the Appellant and his accomplices fleeing from the scene, further corroborated the occurrence of the robbery.
24. I am therefore satisfied that the essential ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code.
25. Further, the prosecution case principally rested on the evidence of visual recognition by PW1 and PW2, corroborated by the testimony of PW3. PW1 testified that although the Appellant had donned a hooded sweater and a blue face mask, the Sun King light inside the house remained on throughout the incident, enabling him to observe the Appellant's eyes and physical appearance. PW1 further stated that he had known the Appellant for approximately fourteen years. PW2 equally testified that the same source of light illuminated the room and that she recognized the Appellant by his eyes, voice and physical appearance, having known him for about four years.
26. Their evidence was further reinforced by PW3, who, upon responding to the distress calls, directed the light of his torch towards a person emerging from the complainants' house and recognized the Appellant at a distance of about ten meters. PW3 also testified that he knew the Appellant beforehand by his physical appearance and voice. The evidence of the three witnesses was consistent as to the identity of the Appellant and there was no suggestion of any prior grudge or motive to falsely implicate him.
27. Considering the above and relying in the case of Anjononi & Others v Republic [1980] KLR 59 I am satisfied that the prosecution presented sufficient evidence linking the Appellant to the offence of robbery with violence and this Court will not depart from the same.
28. On the second issue, Section 251 of the Penal Code describes the offence of Assault causing actual body harm as follows:
“ Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years. ”
29. Additionally, in Ndaa v Republic (Criminal Appeal 146 of 1983) [1984] KECA 19 (KLR) (24 January 1984) (Judgment ) the court of Appeal identified the ingredients of the offence as a) assaulting the complainant or victim; and b) occasioning actual bodily harm
30. My understanding of the above definition is that there must be evidence that the accused is the one who assaulted the complainant and the complainant sustained injuries as a result. To this end there is sufficient evidence on record showing that in deed both PW1 & PW2 sustained injuries to their bodies which was done by the Appellant and two others hence the ingredient of occasioning bodily harm was proved by the prosecution.
31. This Court notes that violence meted out to PW1 formed the very basis upon which the prosecution established the charge of robbery with violence under section 296(2) of the Penal Code.
32. Having relied on the same acts of beating and the injuries sustained by PW1 to satisfy one of the essential ingredients of robbery with violence, the prosecution could not properly obtain a further conviction for assault causing actual bodily harm against the same complainant founded on the identical acts. To do so amounts to punishing the appellant twice for the same criminal conduct.
33. In Hillary Kemboi Seurei v Republic [2016] KECA 199 (KLR) , the Court of Appeal recognized assault causing actual bodily harm as a lesser cognate offence to robbery with violence capable of substitution where the ingredients of robbery are not established, underscoring that the assault is subsumed within the violence constituting the robbery.
34. Likewise, in Samuel Mwaura Muiruri & 2 Others v Republic [2002] KECA 292 (KLR ), the Court of Appeal reiterated that the use of personal violence is one of the statutory ingredients of robbery with violence under Section 296(2).
35. Accordingly, it is my considered view that where the assault against PW1 is the very violence relied upon to prove the robbery with violence, a separate conviction for assault against PW1 is unsustainable. However, the conviction for assault causing actual bodily harm against PW2 is distinguishable, as it concerns a separate complainant who suffered a distinct assault during the same criminal transaction.
36. On the last issue regarding the sentence, the current jurisprudence emerging from the Court of Appeal (Manyeso v Republic Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) and (Evans Nyamari Ayako v Republic Criminal Appeal No.22 of 2022 Kisumu Court of Appeal ) is that life sentences are unconstitutional due to their indeterminate nature.
37. Consequently, it is my considered view that a sentence imposed on a convict has to meet the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Therefore, it is no longer necessary or desirable to hold a convict for an indeterminate amount of time as this does not meet the objectives of the sentencing policy guidelines.
38. In this case, it appears that in determining the sentence, the learned trial magistrate's decision was primarily influenced by the mandatory nature of the applicable law. This jurisprudence has since shifted after the promulgation of the Constitution of Kenya, 2010.
39. Furthermore, it is significant to emphasize that the decisions in the Supreme Court and Court of Appeal cases Francis Karioki Muruatetu & another v Republic [2017] KESC 2 (KLR) (Petitions Nos. 15 & 16 of 2015) , Kitsao Manyeso v Republic [2023] KECA 827 (KLR) (Criminal Appeal 12 of 2021) and Republic v Evans Nyamari Ayako [2025] KESC 20 (KLR) (Petition E002 of 2024 , recognize that indeterminate sentences deprive a convict of the opportunity to be heard in mitigation, while convicts facing lesser sentences are granted such an opportunity. The depravation constitutes unjustifiable discrimination, is unfair, and contravenes the principle of equality before the law as enshrined in Article 27 of the Constitution.
40. Additionally, an indeterminate life sentence, amounts to inhumane treatment and violates the right to dignity under Article 28 of the Constitution.
41. In the instant case, the appellant was charged in the 1 st Count with the offence of robbery with violence contrary to section 296(2) of the Penal Code and was sentenced to life imprisonment on that count. However, while the appeal on conviction is upheld, the appeal on sentence is allowed by substituting the life sentence with a determinate term of 20 years to run from the date of first custody
42. I am guided Court of Appeal decision in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) (Judgment ) where the court stated as follows:
“ On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment. ”
FINAL ORDERS
43. Consequently, the appeal partially succeeds. The conviction of the appellant for the offence of robbery with violence contrary to section 296(2) of the Penal Code in Count I is hereby upheld. The sentence of life imprisonment imposed by the trial court is equally upheld.
44. The conviction and sentence for Count II for assault causing actual bodily harm contrary to section 251 of the Penal Code, relating to PW1, are hereby quashed and set aside, the assault having been founded on the same acts of violence that constituted the offence of robbery with violence in Count I.
45. The conviction for Count III for assault causing actual bodily harm contrary to section 251 of the Penal Code, relating to PW2, is hereby upheld, as the offence constituted a distinct assault against a separate complainant during the same criminal transaction. In view of the conviction and sentence on count 1, the sentence of the accused on Count 3 is held in abeyance .
46. Save for the foregoing variations, the appeal is dismissed .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCRA NO. E135 OF 2025 KELVIN ONYANGO OTIENO VS REPUBLIC JUDGMENT Pg. 13
JUDGMENT
INTRODUCTION
1. The appellant was charged with three counts namely; robbery with violence contrary to Section 296(2) of the Penal Code and two counts of assault causing actual bodily harm contrary to Section 251 of the Penal Code . He was charged in Rongo Principal Magistrate’s Court Criminal Case No. E226 of 2025. The accused denied all the charges.
2. The learned magistrate conducted trial and in the end the accused was convicted of robbery with violence contrary to Section 296(2) of the Penal Code, second count (2) of Assault causing actual bodily harm and count 3 of Assault causing actual bodily harm country to Section 251 of the Penal Code . The appellant was sentenced to life imprisonment for the offence of robbery with violence. On the 2 nd & 3 rd counts the appellant was sentenced to serve three-year imprisonment on each count which shall run concurrently.
3. The appellant was dissatisfied with the conviction and sentence. He filed this appeal which was based on the following grounds:
(1) That I did not plead guilty to the above appended charge(s)
(2) That the trial magistrate erred both in law and fact in convicting me without considering that the evidence tendered was uncorroborated, fabricated, inconsistent, discredited, malicious and cannot stand the dictates of the law.
(3) That the trial court failed to note that the prosecution witnesses coached themselves to fabricate the charge and pin it with the same to settle scores which are family based.
(4) That the trial court erred both in law and fact when it convicted me without considering that the evidence tendered were from the same family members yet according to their testimony, they raised alarm which attracted other independent witnesses who would have come to give account of the alleged incident and shed more light on the prosecution’s case.
(5) That the circumstances prevailing at the time of the alleged robbery did not favour positive identification.
(6) That I was not found with the said property which was allegedly robbed off from the complainant.
(7) That there was no proof of ownership of the said animals, or money the complainant said he had.
(8) That I was not positively identified with clothing or any other physical appearance.
(9) That the medical report failed to meet the threshold of the law.
(10) That there was no sufficient lighting which enabled the complainants to positively identify the assailants.
(11) That the trial court failed in law and fact by rejecting my alibi defence which created reasonable doubt on the prosecution’s case.
(12) That my mitigation was not considered considering the harsh sentence awarded.
(13) That more grounds will be adduced when I get the lower court proceedings.
(14) That the learned trial magistrate erred in both law and in fact by failing to consider that the sentence imposed on the appellant was manifestly harsh disproportionate and excessive in the circumstance.
(15) That the learned trial magistrate erred in law and in fact by failing to adequately consider the appellant’s defence.
(16) That the learned trial magistrate erred in law and in fact in finding that the prosecution had proved its case beyond reasonable doubt.
(17) That the learned trial magistrate failed in law and in fact by disregarding the appellant submission and arguments therein.
4. It was the Appellant’s prayer that this Appeal be allowed, conviction quashed and sentence set aside and that he be set at liberty. The respondent opposed the appeal stating that it lacked merit and urged the Honourable Court to dismiss it in its entirety.
THE PROSECUTION CASE
5. PW1 testified that on the 24/5/2025 he was asleep at around midnight he heard a bang on the door which woke him up. He testified that his sun king light was also on at the time. He was with his wife Moline Achieng and in the process of asking who it was he suddenly saw the Appellant who had worn a hooded sweater and also had a blue face mask. It was PW1’s testimony that the Appellant tried to cut him when he asked him what was his problem and he only respondent by saying don’t talk. It was his testimony that the Appellant stated that he wanted money and he was in the company of 2 other persons who were strangling his wife. Kelvin again tried to cut PW1 with a panga and PW1 lifted his hand to block being cut with the panga which ended up cutting his hand.
6. His wife shouted and told them where the money was and Kelvin took the money, threw it to his friend who alongside his other friend, and they took off leaving the Appellant to struggle with PW1 who overpowered the said PW1. PW1 was later taken to the hospital for treatment. He further stated that the house was lit, the Appellant’s eyes were not covered and he knows the Appellant rather well, which is for a period of about 14 years. On cross examination PW1 reiterated that the incident occurred at night and the money was from the cows he had previously sold.
7. PW2 testified that he was the wife to PW1. On the day of the incident they were sleeping when they heard a loud bang at the door which woke them up. That PW1 tried to ask who it was but some three men burst into the room and stood next to their bed. The sunking light hanging from the roof was on and she was able to see the Appellant and two other individuals. The Appellant was trying to cut PW1 but PW2 testified that it was first blocked by the curtain, that the other two men were strangling her while chanting that they wanted money, with one of them trying to suffocate her. She showed him where the money was and that is when they let go of her. The Appellant took the money and threw it to his friends who let go of her and took off. It was her evidence that the money had been gotten from the sale of cows. It was also her evidence that she knew the Appellant for a period of 4 years and knew his voice and eyes as he had talked to PW1 that night during the incident.
8. PW3 testified that on the same night he was asleep and he heard noises like someone was shouting for help. When he took his torch and stepped out, he realised that the voices belonged to PW1 & PW2. PW3 testified that he started shouting and when he arrived at the house of PW1 & PW2 he spotted two individuals dressed in black and wearing a mask coming out of PW1’s house. PW3 stated that he tried to pursue them but they took off. He further stated he also saw the Appellant leaving the house and he was able to identify him using the torch he was carrying as he directed the light to the Appellant who was approximately 10 meters away. He testified that he knows the Appellant, his voice and physical structure. He stated that he found PW1 injured and PW2 unconscious and they took them to the Hospital. On cross examination PW3 informed Court that he was aware that PW1 had sold his cows but he wasn’t aware the amount of money that he had in the house.
9. PW4 testified that on the night of the incident he also went to the house of PW3 after hearing noises coming from PW3’s home and found Victor was bleeding and his wife was unconscious. He assisted in taking them to the hospital.
10. PW5 produced 2 sets of P3 Forn and treatment notes for PW1 and PW2. On examination of PW,1 there was a dressing on the left thumb and the middle-left hand. He had been stitched on the 1 st finger and on the left side of the back he had bruises. The Doctor testified that PW1 had been assaulted by a sharp object and the injuries fall in the category of harm. On examining PW2, the clinical officer testified that she had swelling on the neck which was painful, she also had pain in her throat. The degree of the injury was harm.
11. PW6 the investigating officer testified that a report was made on the 24/5/2025 by PW1 who was in the company of his father. That at around 0015hrs some people broke into his house who had gained access by drilling a hole next to the door. That the Complainant informed him that he sleeps with light on and when he was woken up by the noise he identified the Appellant who had carried a panga and was in the company of two others. PW6 testified that the Appellant cut him with the Panga and demanded for the money they had received from selling their cow. The wife informed him where the money was and they picked the money and left. PW6 stated that he visited the scene and he was able to see the hole near the door and produced 5 photos of the scene to support this narrative. He further stated that the Appellant was well known to PW1 and was able to identify him eventually he was arrested and charged. On cross examination he informed court that the witnesses were able to positively identify the Appellant.
12. PW7 a clinical officer examined both PW1 & PW2 on the 24/5/2025 at around midnight and upon conducting examination on PW1 he noted that PW1 was bleeding at the left upper limb. That he had cut wounds at the back and left hand and his limb had a cut. The wounds were stitched and a copy of treatment notes was produced into evidence. On examining PW2 he stated that she came in a semi-conscious state. That he discovered that PW2 had edema at the neck and at the chest. The doctor further testified that PW2 suffered from soft tissue injures and blunt chest trauma. The prosecution case was closed at the stage.
DEFENCE CASE
13. When the accused was placed on his defense he denied committing the offence. He stated that he was home the whole night of 24/5/2025 and only left home the following day on the 25/5/2025 at around 3 P.M. That upon returning he was informed by his mother who was at home that the complainant herein was at their home with three people and they stated that the Appellant had stolen from him. It was his evidence that his wife could confirm that he was at work and on cross examination he stated that his wife was not a witness in the said case.
14. The Appeal was canvased by way of written submissions filed by both parties herein.
15. Having set out the background to the matter, this Court’s duty is to evaluate and scrutinize the evidence and proceedings on record and reach its 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. (See also the case of Okeno vs. Republic [1972] E.A 32)
16. This Court has carefully considered the proceedings before the Trial Court, the Petitions of Appeal, as well as the submissions made by both the Appellant and the Respondent. The issues which arise for determination are:
i. Whether the ingredients of robbery with violence were established?
ii. Whether the ingredients of Assault were established?
iii. Whether the sentence imposed was lawful and constitutional?
17. This is a 1 st appeal and this court has a duty to analyze the evidence adduced before the trial court, evaluate it and come up with its own independent finding. In Okeno -vs- Republic (1972) E.A 32 . The court of Appeal set out the duties of the first appellate court as follows:
“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ( Padya -vs- Republic (1957) E.A 336 ) and the appellate courts own decision on the evidence. The first appellate court must itself weigh the conflicting evidence and draw its own conclusion. Shantilal M. Ruwala -vs- R (1957) E.A 570 . It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own findings and draw its own conclusion; only then can it decide whether the magistrate’s fining should be supported.
In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses .”
18. The Court of Appeal in Kiilu & Another -vs- Republic (2005) 1KLR , appreciated that:
“ 1) An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
2) It is not the function of the 1 st appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. In doing so, it should make allowance for the fact that the trial court had the advantage of having and seeing the witnesses. ”
19. The first appellate court is mandated to consider matters of fact and Law. Section 347(2) of the Criminal Procedure Code provides that:
“An appeal to the High Court may be on a matter of fact as well as on matter of law.”
20. On the first issue, this court borrows from the case Oluoch -vs- Republic (1985) KLR , where it was held that:
“ Robbery with violence is committed in any of the following circumstances:
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. ”
21. The elements are distinctive in nature and the prosecution needs to prove only one as was held in the case of Juma Mohamed Ganzi & 3 Others -vs- Republic Appeal No. 275/2002 .
22. In the present case, the evidence on record demonstrates that all the ingredients were proved. PW1 and PW2 consistently testified that the Appellant was accompanied by two other assailants who forcibly entered their house at night while demanding money. PW1 testified that the Appellant was armed with a panga, with which he attempted to cut him and, in the process, inflicted injuries on his hand. PW2 further testified that the Appellant's accomplices strangled and attempted to suffocate her until she disclosed the location of the money. The assailants thereafter stole the proceeds from the sale of the complainants' cows before fleeing the scene.
23. The medical evidence adduced through PW5 corroborated the complainants' account by confirming that PW1 sustained cut wounds caused by a sharp object, while PW2 suffered neck swelling and throat pain consistent with strangulation, both injuries being assessed as amounting to harm. The evidence of PW3, who responded to the complainants' distress calls and observed the Appellant and his accomplices fleeing from the scene, further corroborated the occurrence of the robbery.
24. I am therefore satisfied that the essential ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code.
25. Further, the prosecution case principally rested on the evidence of visual recognition by PW1 and PW2, corroborated by the testimony of PW3. PW1 testified that although the Appellant had donned a hooded sweater and a blue face mask, the Sun King light inside the house remained on throughout the incident, enabling him to observe the Appellant's eyes and physical appearance. PW1 further stated that he had known the Appellant for approximately fourteen years. PW2 equally testified that the same source of light illuminated the room and that she recognized the Appellant by his eyes, voice and physical appearance, having known him for about four years.
26. Their evidence was further reinforced by PW3, who, upon responding to the distress calls, directed the light of his torch towards a person emerging from the complainants' house and recognized the Appellant at a distance of about ten meters. PW3 also testified that he knew the Appellant beforehand by his physical appearance and voice. The evidence of the three witnesses was consistent as to the identity of the Appellant and there was no suggestion of any prior grudge or motive to falsely implicate him.
27. Considering the above and relying in the case of Anjononi & Others v Republic [1980] KLR 59 I am satisfied that the prosecution presented sufficient evidence linking the Appellant to the offence of robbery with violence and this Court will not depart from the same.
28. On the second issue, Section 251 of the Penal Code describes the offence of Assault causing actual body harm as follows:
“ Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years. ”
29. Additionally, in Ndaa v Republic (Criminal Appeal 146 of 1983) [1984] KECA 19 (KLR) (24 January 1984) (Judgment ) the court of Appeal identified the ingredients of the offence as a) assaulting the complainant or victim; and b) occasioning actual bodily harm
30. My understanding of the above definition is that there must be evidence that the accused is the one who assaulted the complainant and the complainant sustained injuries as a result. To this end there is sufficient evidence on record showing that in deed both PW1 & PW2 sustained injuries to their bodies which was done by the Appellant and two others hence the ingredient of occasioning bodily harm was proved by the prosecution.
31. This Court notes that violence meted out to PW1 formed the very basis upon which the prosecution established the charge of robbery with violence under section 296(2) of the Penal Code.
32. Having relied on the same acts of beating and the injuries sustained by PW1 to satisfy one of the essential ingredients of robbery with violence, the prosecution could not properly obtain a further conviction for assault causing actual bodily harm against the same complainant founded on the identical acts. To do so amounts to punishing the appellant twice for the same criminal conduct.
33. In Hillary Kemboi Seurei v Republic [2016] KECA 199 (KLR) , the Court of Appeal recognized assault causing actual bodily harm as a lesser cognate offence to robbery with violence capable of substitution where the ingredients of robbery are not established, underscoring that the assault is subsumed within the violence constituting the robbery.
34. Likewise, in Samuel Mwaura Muiruri & 2 Others v Republic [2002] KECA 292 (KLR ), the Court of Appeal reiterated that the use of personal violence is one of the statutory ingredients of robbery with violence under Section 296(2).
35. Accordingly, it is my considered view that where the assault against PW1 is the very violence relied upon to prove the robbery with violence, a separate conviction for assault against PW1 is unsustainable. However, the conviction for assault causing actual bodily harm against PW2 is distinguishable, as it concerns a separate complainant who suffered a distinct assault during the same criminal transaction.
36. On the last issue regarding the sentence, the current jurisprudence emerging from the Court of Appeal (Manyeso v Republic Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) and (Evans Nyamari Ayako v Republic Criminal Appeal No.22 of 2022 Kisumu Court of Appeal ) is that life sentences are unconstitutional due to their indeterminate nature.
37. Consequently, it is my considered view that a sentence imposed on a convict has to meet the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Therefore, it is no longer necessary or desirable to hold a convict for an indeterminate amount of time as this does not meet the objectives of the sentencing policy guidelines.
38. In this case, it appears that in determining the sentence, the learned trial magistrate's decision was primarily influenced by the mandatory nature of the applicable law. This jurisprudence has since shifted after the promulgation of the Constitution of Kenya, 2010.
39. Furthermore, it is significant to emphasize that the decisions in the Supreme Court and Court of Appeal cases Francis Karioki Muruatetu & another v Republic [2017] KESC 2 (KLR) (Petitions Nos. 15 & 16 of 2015) , Kitsao Manyeso v Republic [2023] KECA 827 (KLR) (Criminal Appeal 12 of 2021) and Republic v Evans Nyamari Ayako [2025] KESC 20 (KLR) (Petition E002 of 2024 , recognize that indeterminate sentences deprive a convict of the opportunity to be heard in mitigation, while convicts facing lesser sentences are granted such an opportunity. The depravation constitutes unjustifiable discrimination, is unfair, and contravenes the principle of equality before the law as enshrined in Article 27 of the Constitution.
40. Additionally, an indeterminate life sentence, amounts to inhumane treatment and violates the right to dignity under Article 28 of the Constitution.
41. In the instant case, the appellant was charged in the 1 st Count with the offence of robbery with violence contrary to section 296(2) of the Penal Code and was sentenced to life imprisonment on that count. However, while the appeal on conviction is upheld, the appeal on sentence is allowed by substituting the life sentence with a determinate term of 20 years to run from the date of first custody
42. I am guided Court of Appeal decision in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) (Judgment ) where the court stated as follows:
“ On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment. ”
FINAL ORDERS
43. Consequently, the appeal partially succeeds. The conviction of the appellant for the offence of robbery with violence contrary to section 296(2) of the Penal Code in Count I is hereby upheld. The sentence of life imprisonment imposed by the trial court is equally upheld.
44. The conviction and sentence for Count II for assault causing actual bodily harm contrary to section 251 of the Penal Code, relating to PW1, are hereby quashed and set aside, the assault having been founded on the same acts of violence that constituted the offence of robbery with violence in Count I.
45. The conviction for Count III for assault causing actual bodily harm contrary to section 251 of the Penal Code, relating to PW2, is hereby upheld, as the offence constituted a distinct assault against a separate complainant during the same criminal transaction. In view of the conviction and sentence on count 1, the sentence of the accused on Count 3 is held in abeyance .
46. Save for the foregoing variations, the appeal is dismissed .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCRA NO. E135 OF 2025 KELVIN ONYANGO OTIENO VS REPUBLIC JUDGMENT Pg. 13