A. THE CHARGE.
1. Lawrence Onyango Juma (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 the night of 7th August, 2023 at about 0000hrs in Thurgem village, Awach Sublocation, North Nyakach Location in Nyakach Subcounty within Kisumu County, jointly with another not before the trial court, the Appellant, while armed with dangerous weapons namely pangas and rungus, robbed Felix Otieno Oloo (hereinafter referred to as “the complainant”) of one button mobile phone make itel black in colour, serial number 357529548145488 valued at Ksh.1,995/- and cash of Ksh.11,200/-, all valued at Ksh.13,195/- and at the time of such robbery wounded the said complainant.
3. The Appellant denied the charge, which then called for a full trial.
4. The prosecution case was founded on the evidence of 6 witnesses while the defence comprised of the Appellant’s sworn testimony.
5. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
6. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 4th October, 2024. The Appellant filed supplementary grounds of appeal dated 6th March, 2025. The grounds of appeal may be summarized as follows:
1. Insufficient evidence and/or unproven ingredients of the offence:
- The trial magistrate erred in law and fact by convicting the appellant when the ingredients of the offence were not proved to the required standard.
- Conviction was based on medical evidence that was unsatisfactory and unreliable.
- The prosecution case contained inconsistencies, contradictions, and gaps making the evidence unbelievable.
2. Identification evidence issues:
- Conviction relied on inconclusive identification by a single eyewitness under difficult circumstances, uncorroborated.
3. Doctrine of recent possession misapplied:
- The court erred in applying the doctrine of recent possession when its ingredients were not proved beyond reasonable doubt.
4. Conflicting or irrelevant evidence not properly weighed:
- The court failed to address conflicting evidence (e.g., the phone in the Appellant’s possession vsersus the one produced in court).
5. Procedural irregularities and/or fatal defects in evidence:
- Failure to prepare a duly filled and signed inventory, which was fatal to the case.
- Admission of prosecution evidence obtained in a manner detrimental to justice, contrary to Article 50(4) of the Constitution.
6. 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.
7. Duplication of charges:
- Conviction relied on a duplex charge, contrary to the principles established in Mwaura vs Republic [2013] eKLR.
7. 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.
8. 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.)
9. 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.
10. Now to the record of the trial court, the complainant testified as the first prosecution witness (PW1) and told the court that on 7th August at around midnight, he was on his way to a funeral night vigil about 50 meters from his home when he was attacked by two boys armed with pangas and rungus. He described that one assailant had dreadlocks, held a torch in one hand and a panga in the other, while the other was short and stood a few meters away.
11. The complainant stated further that the two boys questioned him in Swahili about his identity and destination and he surrendered his Itel cellphone and cash Ksh.11,200/- upon the assailants’ demand, out of fear. He was then cut on the head and hand but managed to scare them away by screaming. He proceeded to the funeral bleeding and called his cousin Alphonce, who took him to Katito Medical Centre, where he was treated and discharged around 3:00 a.m.
12. The complainant stated further that on the following morning, he reported the incident to Katito Police station and obtained a P3 form, which was subsequently completed at Nyakach County Hospital, after which he recorded a statement at the police station. He identified the Appellant in court as the attacker who had dreadlocks, noting that his stolen phone was found in the Appellant’s possession, after the same had been tracked.
13. During cross-examination, the complainant stated that he did not know the accused person before the incident. He explained that at the time of the attack, he had been using a torch, which was switched on. He pointed out injuries he had sustained, including a mark below his mouth on the chin and a mark on his right cheek. He noted that the assailants fled with the weapons.
14. The complainant confirmed that the IMEI number of the recovered phone matched his and that it was the police who recovered it. He emphasized that the person who stole his phone was a complete stranger to him and that he had no prior business or relationship with the accused.
15. The second prosecution witness was Alphonce Oduor Agugo (PW2). In his testimony, the witness told the trial court he was a resident of Nairobi and was engaged in business. He recalled that on 7th August, 2023, shortly after midnight, he received a call from his cousin, the complainant, who informed him that he had been attacked, seriously injured and robbed. The complainant requested PW2 to take him to hospital.
16. PW2 told the trial court that proceeded and confirmed that the complainant had indeed been injured. He then drove the complainant to Katito Hospital. He stated that the complainant had deep cuts on two of his fingers of the left hand and a severe cut above his right ear. The complainant received medical treatment for his injuries.
17. PW2 further stated that the incident was reported to Katito Police Station and he was later called upon to record his statement at the station. He told the trial court that he was informed by the complainant that attack had been carried out by two individuals in the dark, whose names were not disclosed and that during the attack, the complainant’s phone was stolen.
18. Upon being cross examined by the accused, PW2 stated that he was in the house sleeping when the complainant called him on his phone. He stated that he did not witness the attack.
19. The prosecution called Collins Omondi as the third prosecution witness (PW3). In his evidence, PW3 told the trial court that he lived in Rabuor and was a teacher by profession. He recalled that on 7th August, 2023, he saw a message in a teachers’ WhatsApp group indicating that his colleague, the complainant, had been attacked. There were photos indicative of the attack in the group.
20. PW3 further told the trial court that he reached out to the Appellant who informed him that he had been attacked by thugs and that his phone had been stolen. PW3 then asked the complainant for the phone’s receipt and packaging box in order to obtain the IMEI number.
21. It was the further evidence of PW3 that he traced the new user of the phone the next day, noting that only about one to two hours had passed between the time when the complainant had last used it and the time when the new user began using it. The new user was identified as Lawrence Juma.
22. The witness told the trial court that he made a phone call to the new user while pretending not to know him and stated that he was in need of a fundi. He requested and arranged to meet him the following morning at Ayweyo, and informed the police at Boya Police Station about the plan. The next day, PW3 was accompanied by police officers and when the user of the phone arrived on a motorcycle, identified himself as Lawrence and was promptly arrested by the police. The witness pointed out to the trial court the Appellant as the person who was apprehended with the complainant’s phone.
23. PW3 testified further that upon his arrest, the Appellant handed over an Itel phone, which was verified against the IMEI numbers from the complainant’s phone box: 135752954814548, 357529548145496 and 357529548145504. The Appellant was taken to Boya Police Station and later escorted to Katito Police Station.
24. At Katito, PW3 and other teachers were present when the Appellant explained that he had obtained the phone from a friend and had found it on the ground where the complainant had been attacked.
25. Upon being cross examined, by the Appellant, PW3 told the trial court that he had seen communication about the complainant’s attack in a teachers’ WhatsApp group. He confirmed that he had called and texted the complainant to follow up, and that the complainant had sent him the phone’s receipt and box.
26. The witness stated that the police confirmed the IMEI number of the black Itel phone recovered from the accused by dialing *#06# and verified that it matched that of the complainat’s phone. PW3 emphasized that the Safaricom line in the phone belonged to Lawrence Juma, and the person he had called and spoken to – the Appellant – was indeed Lawrence Juma. He further clarified that on 7th August, 2023, the phone line in question was in the Appellant’s possession.
27. The fourth prosecution witness was David Materi (PW4), who told the trial court that he was a clinician at Muhoroni County Hospital and had previously served at Nyakach Hospital. The witness identified a P3 form and treatment notes for that he completed and/or prepared when he examined and treated the complainant. The witness stated that the P3 form was completed and signed on 12th August 2023 after the complainant had reported that he had been assaulted by two unknown individuals on 7th August. 2023, at around midnight near Thurgem Primary School in Nyakach.
28. The witness explained that the complainant sustained cut wounds on his hand and head. At the time of examination, he was wearing a red jacket and a pair of blue long trousers and both stained with blood. He was in a fair general condition and was not intoxicated.
29. DW4 told the trial court that on assessment, he observed a tender and swollen cut on the parietal region of the right side of the complainant’s head, a deep cut on the ring finger of the left hand, cuts on the left palm and wrist joint, all tender and swollen. He stated that although five days had elapsed since the incident, initial treatment had been administered at a private hospital on 7th August, 2023.
30. The witness stated that the injuries were caused by a sharp object and classified as harm. He stated that the complainant received treatment including tetanus toxoid, antibiotics, suturing and painkillers. The witness produced the P3 form and the treatment notes as exhibits.
31. During cross-examination, PW4 clarified that the initial treatment for the complainant had been administered on 7th August, 2023 at a private hospital and that when he examined the patient later, the wounds had already begun to close, with no active bleeding. He noted that the injuries were still in the early stages of healing, having occurred less than a week prior.
32. The fifth prosecution witness was Police Constable Teddy Chirongo (PW5), who told the trial court that he was attached to Boya Police Station and performed crime duties.
33. The witness recalled the events of 12th August, 2023 and told the trial court that on that day at about 0800hrs, a report of the attack was made to the station. He stated that his colleague Police Constable Rahab informed him that PW3 was at the station and was following up on the report. PW5 met PW3, who informed him that the complainant, who was his cousin, had been attacked at Gem Rae and his phone stolen. PW3 requested for police assistance to arrest a suspect at Ayweyo area. Together with PW3, PW5 and his colleague Police Constable Bonface Njeru, proceeded to Ayweyo where they waited at a shop for the suspect to arrive.
34. PW5 stated that at Ayweyo, PW3 made a phone call to the suspect, who arrived shortly after with an Itel phone. The officers apprehended the suspect – the Appellant – and recovered a phone from him. PW5 stated that upon recovering the phone from the Appellant, he confirmed the IMEI number of the phone as 357529548145488 and detailed its previous users, including the complainant. The Appellant was escorted to Boya Police Station and later transferred to Katito Police Station.
35. PW5 identified and produced the recovered phone as an exhibit, noting that that its IMEI number matched the one registered to the complainant as appearing in the packaging box that the complainant had.
36. Upon being cross examined, PW5 confirmed that at the time of arrest, the Appellant had two phones: the one that was produced as an exhibit and a smartphone.
37. The last prosecution witness was Police Constable Koech Weldon (PW6), who told the trial court that he was attached to Katito Police Station and performed general investigations. He was the investigating officer in the matter.
38. PW6 recalled that on 12th August, 2023, at about 1000hrs, he received a call from the complainant who informed him that he was at the station and wished to see him. Upon arrival, the officer recorded the complainant’s statement, in which he explained that he had been attacked and robbed on 7th August 2023, at about midnight, while on his way to a night vigil, by two assailants who were armed with pangas and rungus and his mobile phone, a black Itel valued at Ksh.1,995/- with IMEI number 357529548145488 and cash Ksh.11,200/- stolen from him. The complainant told the officer that he was injured during the attack and later sought treatment at Katito Hospital.
39. PW6 explained to the trial court that the suspect – the Appellant - had inserted his SIM card into the stolen phone and the phone was tracked and the suspect was tricked into a meeting PW3 at Ayweyo Market, where he was arrested by police officers and taken into custody. Investigations that followed confirmed that the phone’s IMEI matched the IMEI number that was provided bythe complainant, which was in a receipt and packaging box that the complainant provided. Felix. He further stated that the complainant had described one of the assailants as having dreadlocks.
40. Upon being cross examined, PW6 told the trial court that the suspect was tracked as he had inserted his SIM card into the stolen phone. He also clarified the phone numbers associated with the device: 0799*****7 registered to Lawrence Juma and inserted into the phone on 7th August, 2023; 0799*****5 registered to the complainant, inserted into the phone on on 27th July, 2023; and 0706*****0 registered to Anne Anyango, inserted into the phone on 4th July, 2023.
41. The officer produced as exhibits the receipt and packaging box for the phone that were provided by the complainant.
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 Nyakach and a jua kali artisan by occupation. He stated that on 12th August 2023 at about 9.30 a.m., he woke up and proceeded to work using a motorcycle. Before reaching his destination, he was stopped by two civilians who seized the motorcycle key and arrested him for a traffic offence, namely riding without a helmet and reflector jacket. He was taken to police cells together with another person.
44. The Appellant further testified that while in custody, a police officer asked them to mitigate. The other person who had been arrested with him allegedly gave money to the police and was released. The Appellant stated that he did not have money and was therefore retained in custody. He was later given a phone to call someone to assist him, but he was unable to reach anyone. At about 4.00 p.m., police officers from Katito Police Station picked him up from Boya Police station and took him to Katito Police Station.
45. The Appellant stated that he was placed in the cells at Katito Police Station, handcuffed and later taken to an office where his fingerprints were taken. He was subsequently taken to court where a charge was read to him, which he claimed he did not understand. He told the trial court that a phone was produced in court and he was asked whether it could be returned to its owner, to which he did not object.
46. On being cross-examined, the Appellant stated that on 7th August 2023 he was at his home. He maintained that he had never seen the phone before it was produced in court and that he had never inserted his SIM card into it. The Appellant further stated that he had not recorded a statement with the police and that he had never seen the complainant before. He reiterated that he was arrested with another person who was later released after allegedly giving money to the police, while he remained in custody because he did not give any money. He denied knowledge of the charges preferred against him.
47. The Appellant did not call any witness and the defence case was closed at that stage.
E. ANALYSIS & DETERMINATION BY THE TRIAL COURT.
48. Upon the close of the trial case, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, set out the following four issues for determination, in her judgement rendered on 3rd October, 2024:
a. Whether prosecution evidence on record is capable to sustain a conviction against the accused herein for the charge that he is facing.
b. Whether prosecution have proved its case against the accused herein to the required threshold in law in criminal cases.
c. Whether the defence raised has cast any doubt on the prosecution case.
d. Whether the accused is guilty as charged.
49. The learned trial Magistrate then went on to address and determine that the doctrine of recent possession was applicable in the case as the complainant’s stolen phone was allegedly recovered in the possession of the Appellant, soon after the attack and robbery.
50. Relying on the authorities of Athuman Salim Athuman vs Republic [2016] eKLR; Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic Cr Appeal No 272 of 2005; and Paul Mwita Robi V Republic Kisumu Cr Appeal No 200 Of 2008 she went on to state the position in law regarding the doctrine, that the same applies when an accused person is found in possession of property that has been recently stolen.
51. The learned trial Magistrate outlined the essential principle of the doctrine, that if the accused cannot provide a reasonable explanation for how they came into possession of the property, a presumption arises that they are either the thief or a receiver of the stolen goods and that the presumption is one of fact, and it shifts the evidential burden to the accused to account for their possession.
52. Further, the learned trial Magistrate correctly put it that the doctrine is applicable in securing a conviction but that the prosecution must establish three key elements: first, that the property was found with the suspect; second, that the property belongs to the complainant; and third, that the property was recently stolen and that the determination of what constitutes “recent” is flexible and depends on how quickly and easily the stolen property could have been transferred between individuals.
53. In analyzing and determining the identified issues, the trial Magistrate rendered herself as follows as to what would amount to an offence of robbery with violence:
“Section 295 of the penal code provides that any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
Section 296 (2) of the penal code provides that if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
In the case of Jeremiah Oloo Odira v Republic [2018] eKLR; it was held that:
“......on the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established; -
1. That the offender is armed with any dangerous or offensive weapon or instrument; or
2. The offender is the company of one or more other person or persons; or
3. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.”
54. The learned trial Magistrate then went on to determine the discerned issues as follows:
“From the prosecution evidence on record, the complainant herein was on his way to a funeral for a night vigil when he was attacked by two boys that were armed. One of them had dreadlocked hair and a mark at his chin. He was using the torch light from his phone which was on that enabled him to see his attackers. The one with dreadlocks had a panga that he used to cut him on his head, palm, finger after demanding him to surrender his phone and anything else that he had. He screamed and they fled away. He sought for help from his cousin that took him to hospital. Later he reported the incident to the police. The accused inserted his line in the stolen phone that was fortunately tracked leading to his arrest. Its IMEI number matched the one provided by the complainant in respect of the stolen phone.
Having considered all the above and the provisions of the law as well as the cited cases, I find that prosecution has proved its case against the accused herein beyond reasonable doubt as follows;
1. Prosecution evidence on record has squarely placed the accused herein at the scene of crime being on the way to a funeral venue where the complainant was headed; some fifty meters from his home where he was attacked; assaulted and robbed of his phone.
2. The description of the assailant provided by the complainant herein was sufficient to positively identify the accused herein as his attacker on the fateful night that had dreadlocked hair and a mark/scar below his chin however at the time of testifying, the accused herein had already shaved his hair and no longer had the dreadlocks. This was confirmed by both PW4, PC Teddy Chirongo, the arresting officer and PW6, PC Weldon Koech the investigating officer both of whom informed the court that by the time of arresting the accused and handing him over to their counter part at Katito police station, the accused herein indeed had dreadlocked hair; this was not disputed during cross-examination;
3. Prosecution availed in court as exhibits the recovered stolen phone from the complainant as well as receipt of ownership in the name of the complainant;
4. Prosecution established that the said phone had been stolen from the complainant and recently since the robbery incident occurred on 7/8/2023 while the said phone was recovered from the accused herein on 12/8/2023; I. e some three days after the robbery incident that this court deems as very recent;
5. Prosecution established that the accused herein was in company with another whom the complainant spotted as he moved away and that he was short; while the one with dreadlocks had a torch and panga;
6. Prosecution established to the courts satisfaction that the accused struck and wounded the complainant herein during the said robbery incident causing him to sustain injuries on his body as evidenced by the p3 form produced as exhibit that classified the injuries sustained by the complainant herein as harm.
7. The defence raised by the accused is mere denial and has not punched holes, distorted or weakened the prosecution evidence on record in any way that is unchallenged.
55. 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.
56. The instant appeal was canvassed by way of written submissions.
F. THE APPELLANT’S SUBMISSIONS ON THE APPEAL.
57. In his submissions, the Appellant contends that the trial court erred both in law and in fact in relying on the evidence of identification from a single eyewitness, PW1, under circumstances that rendered such evidence inherently unreliable. The incident occurred at night, around 2200 hours, in darkness and the attackers were strangers to the complainant.
58. The Appellant states that the complainant did not provide a description of the Appellant in his initial report to Katito Police Station on 8th August, 2023 and that the description of the Appellant was allegedly given to PW6 only on 12th August, 2023, after the Appellant’s arrest and subsequent exposure to PW1 and PW2 in broad daylight. He submits that no contemporaneous record of the description was maintained by PW6 and his assertion in court that the complainant described the Appellant was made during cross-examination and not in chief examination. The Appellant submits that this amounts to an afterthought and that dock identification, absent a properly conducted identification parade, is of no evidential value. Evidence regarding physical features such as dreadlocks or a scar obtained during or after arrest is therefore unreliable and inadmissible.
59. The Appellant further submits that the trial court erred in invoking the doctrine of recent possession as the prosecution failed to prove all its ingredients beyond a reasonable doubt. He states that ownership of the alleged stolen mobile phone was not established, as the phone box, IMEI number and receipts were not produced in court. He further submits that PW1 described the phone alleged to have been stolen as as an Itel black smartphone, yet the phone produced in court was not a smartphone, raising doubt as to whether the correct item was recovered.
60. Moreover, he states that no inventory was duly filled or signed to verify recovery from the Appellant. The Appellant relies on Letzur Teper s The Queen [1952] 20 H.C. 48, which he submits underscores that circumstantial evidence must be narrowly examined and independently corroborated to avoid fabrication or undue suspicion. He also cites Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights and others [2013] eKLR, emphasizing that there must be strict compliance with procedural rules when handling evidence.
61. The Appellant submits that electronic evidence allegedly linking him to the phone was improperly admitted. The Safaricom liaison officers were not called to authenticate the electronic records and PW3, PW5 and PW6 were neither experts nor the makers of the records. No electronic evidence certificates were produced pursuant to Sections 65(8) and 106(B) of the Evidence Act, to demonstrate lawful control over the computers or to verify the production of the records. Consequently, reliance on this evidence, he states, violated Article 50(4) of the Constitution, which guarantees the right to a fair trial.
62. The Appellant also relies on Hamis vs Director of Public Prosecution [1952] AC 694, where the court held that evidence obtained by trick from an accused person is inadmissible. For these reasons, the Appellant submits that the prosecution failed to establish the doctrine of recent possession beyond reasonable doubt.
63. On sentence, the Appellant contends that the trial court erred in law by denying him the right to the least prescribed sentence under Articles 25(c) and 50(2)(p) of the Constitution. He relies on the decision in Shaban Salim Ramadhan & 8 Others (Constitutional Petition No. 5 of 2022, consolidated with No. 6 of 2022, High Court of Kenya at Mombasa, which declared the mandatory nature of the death penalty under Sections 296(2) and 297(2) of the Penal Code unconstitutional.
64. The Appellant urges that, in the event the appeal against conviction is dismissed, the court should impose the least prescribed sentence, taking into account the time he has spent in custody during the trial, pursuant to Section 333(2) of the Criminal Procedure Code and paragraph 5.1.21 of the Sentencing Policy Guidelines.
65. In view of the foregoing, the Appellant prays that this Court allows the appeal, quashes the conviction and sets aside the sentence. In the alternative, the Appellant requests that the Court imposes the minimum sentence permissible by law, taking into account the time spent in custody during trial.
G. THE RESPONDENT’S SUBMISSIONS ON THE APPEAL.
66. In its written submissions, the Respondent opposes the appeal against the conviction and death sentence for the offence of robbery with violence. The Respondent submits that the trial court correctly invoked th
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1. Lawrence Onyango Juma (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 the night of 7th August, 2023 at about 0000hrs in Thurgem village, Awach Sublocation, North Nyakach Location in Nyakach Subcounty within Kisumu County, jointly with another not before the trial court, the Appellant, while armed with dangerous weapons namely pangas and rungus, robbed Felix Otieno Oloo (hereinafter referred to as “the complainant”) of one button mobile phone make itel black in colour, serial number 357529548145488 valued at Ksh.1,995/- and cash of Ksh.11,200/-, all valued at Ksh.13,195/- and at the time of such robbery wounded the said complainant.
3. The Appellant denied the charge, which then called for a full trial.
4. The prosecution case was founded on the evidence of 6 witnesses while the defence comprised of the Appellant’s sworn testimony.
5. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
6. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 4th October, 2024. The Appellant filed supplementary grounds of appeal dated 6th March, 2025. The grounds of appeal may be summarized as follows:
1. Insufficient evidence and/or unproven ingredients of the offence:
- The trial magistrate erred in law and fact by convicting the appellant when the ingredients of the offence were not proved to the required standard.
- Conviction was based on medical evidence that was unsatisfactory and unreliable.
- The prosecution case contained inconsistencies, contradictions, and gaps making the evidence unbelievable.
2. Identification evidence issues:
- Conviction relied on inconclusive identification by a single eyewitness under difficult circumstances, uncorroborated.
3. Doctrine of recent possession misapplied:
- The court erred in applying the doctrine of recent possession when its ingredients were not proved beyond reasonable doubt.
4. Conflicting or irrelevant evidence not properly weighed:
- The court failed to address conflicting evidence (e.g., the phone in the Appellant’s possession vsersus the one produced in court).
5. Procedural irregularities and/or fatal defects in evidence:
- Failure to prepare a duly filled and signed inventory, which was fatal to the case.
- Admission of prosecution evidence obtained in a manner detrimental to justice, contrary to Article 50(4) of the Constitution.
6. 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.
7. Duplication of charges:
- Conviction relied on a duplex charge, contrary to the principles established in Mwaura vs Republic [2013] eKLR.
7. 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.
8. 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.)
9. 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.
10. Now to the record of the trial court, the complainant testified as the first prosecution witness (PW1) and told the court that on 7th August at around midnight, he was on his way to a funeral night vigil about 50 meters from his home when he was attacked by two boys armed with pangas and rungus. He described that one assailant had dreadlocks, held a torch in one hand and a panga in the other, while the other was short and stood a few meters away.
11. The complainant stated further that the two boys questioned him in Swahili about his identity and destination and he surrendered his Itel cellphone and cash Ksh.11,200/- upon the assailants’ demand, out of fear. He was then cut on the head and hand but managed to scare them away by screaming. He proceeded to the funeral bleeding and called his cousin Alphonce, who took him to Katito Medical Centre, where he was treated and discharged around 3:00 a.m.
12. The complainant stated further that on the following morning, he reported the incident to Katito Police station and obtained a P3 form, which was subsequently completed at Nyakach County Hospital, after which he recorded a statement at the police station. He identified the Appellant in court as the attacker who had dreadlocks, noting that his stolen phone was found in the Appellant’s possession, after the same had been tracked.
13. During cross-examination, the complainant stated that he did not know the accused person before the incident. He explained that at the time of the attack, he had been using a torch, which was switched on. He pointed out injuries he had sustained, including a mark below his mouth on the chin and a mark on his right cheek. He noted that the assailants fled with the weapons.
14. The complainant confirmed that the IMEI number of the recovered phone matched his and that it was the police who recovered it. He emphasized that the person who stole his phone was a complete stranger to him and that he had no prior business or relationship with the accused.
15. The second prosecution witness was Alphonce Oduor Agugo (PW2). In his testimony, the witness told the trial court he was a resident of Nairobi and was engaged in business. He recalled that on 7th August, 2023, shortly after midnight, he received a call from his cousin, the complainant, who informed him that he had been attacked, seriously injured and robbed. The complainant requested PW2 to take him to hospital.
16. PW2 told the trial court that proceeded and confirmed that the complainant had indeed been injured. He then drove the complainant to Katito Hospital. He stated that the complainant had deep cuts on two of his fingers of the left hand and a severe cut above his right ear. The complainant received medical treatment for his injuries.
17. PW2 further stated that the incident was reported to Katito Police Station and he was later called upon to record his statement at the station. He told the trial court that he was informed by the complainant that attack had been carried out by two individuals in the dark, whose names were not disclosed and that during the attack, the complainant’s phone was stolen.
18. Upon being cross examined by the accused, PW2 stated that he was in the house sleeping when the complainant called him on his phone. He stated that he did not witness the attack.
19. The prosecution called Collins Omondi as the third prosecution witness (PW3). In his evidence, PW3 told the trial court that he lived in Rabuor and was a teacher by profession. He recalled that on 7th August, 2023, he saw a message in a teachers’ WhatsApp group indicating that his colleague, the complainant, had been attacked. There were photos indicative of the attack in the group.
20. PW3 further told the trial court that he reached out to the Appellant who informed him that he had been attacked by thugs and that his phone had been stolen. PW3 then asked the complainant for the phone’s receipt and packaging box in order to obtain the IMEI number.
21. It was the further evidence of PW3 that he traced the new user of the phone the next day, noting that only about one to two hours had passed between the time when the complainant had last used it and the time when the new user began using it. The new user was identified as Lawrence Juma.
22. The witness told the trial court that he made a phone call to the new user while pretending not to know him and stated that he was in need of a fundi. He requested and arranged to meet him the following morning at Ayweyo, and informed the police at Boya Police Station about the plan. The next day, PW3 was accompanied by police officers and when the user of the phone arrived on a motorcycle, identified himself as Lawrence and was promptly arrested by the police. The witness pointed out to the trial court the Appellant as the person who was apprehended with the complainant’s phone.
23. PW3 testified further that upon his arrest, the Appellant handed over an Itel phone, which was verified against the IMEI numbers from the complainant’s phone box: 135752954814548, 357529548145496 and 357529548145504. The Appellant was taken to Boya Police Station and later escorted to Katito Police Station.
24. At Katito, PW3 and other teachers were present when the Appellant explained that he had obtained the phone from a friend and had found it on the ground where the complainant had been attacked.
25. Upon being cross examined, by the Appellant, PW3 told the trial court that he had seen communication about the complainant’s attack in a teachers’ WhatsApp group. He confirmed that he had called and texted the complainant to follow up, and that the complainant had sent him the phone’s receipt and box.
26. The witness stated that the police confirmed the IMEI number of the black Itel phone recovered from the accused by dialing *#06# and verified that it matched that of the complainat’s phone. PW3 emphasized that the Safaricom line in the phone belonged to Lawrence Juma, and the person he had called and spoken to – the Appellant – was indeed Lawrence Juma. He further clarified that on 7th August, 2023, the phone line in question was in the Appellant’s possession.
27. The fourth prosecution witness was David Materi (PW4), who told the trial court that he was a clinician at Muhoroni County Hospital and had previously served at Nyakach Hospital. The witness identified a P3 form and treatment notes for that he completed and/or prepared when he examined and treated the complainant. The witness stated that the P3 form was completed and signed on 12th August 2023 after the complainant had reported that he had been assaulted by two unknown individuals on 7th August. 2023, at around midnight near Thurgem Primary School in Nyakach.
28. The witness explained that the complainant sustained cut wounds on his hand and head. At the time of examination, he was wearing a red jacket and a pair of blue long trousers and both stained with blood. He was in a fair general condition and was not intoxicated.
29. DW4 told the trial court that on assessment, he observed a tender and swollen cut on the parietal region of the right side of the complainant’s head, a deep cut on the ring finger of the left hand, cuts on the left palm and wrist joint, all tender and swollen. He stated that although five days had elapsed since the incident, initial treatment had been administered at a private hospital on 7th August, 2023.
30. The witness stated that the injuries were caused by a sharp object and classified as harm. He stated that the complainant received treatment including tetanus toxoid, antibiotics, suturing and painkillers. The witness produced the P3 form and the treatment notes as exhibits.
31. During cross-examination, PW4 clarified that the initial treatment for the complainant had been administered on 7th August, 2023 at a private hospital and that when he examined the patient later, the wounds had already begun to close, with no active bleeding. He noted that the injuries were still in the early stages of healing, having occurred less than a week prior.
32. The fifth prosecution witness was Police Constable Teddy Chirongo (PW5), who told the trial court that he was attached to Boya Police Station and performed crime duties.
33. The witness recalled the events of 12th August, 2023 and told the trial court that on that day at about 0800hrs, a report of the attack was made to the station. He stated that his colleague Police Constable Rahab informed him that PW3 was at the station and was following up on the report. PW5 met PW3, who informed him that the complainant, who was his cousin, had been attacked at Gem Rae and his phone stolen. PW3 requested for police assistance to arrest a suspect at Ayweyo area. Together with PW3, PW5 and his colleague Police Constable Bonface Njeru, proceeded to Ayweyo where they waited at a shop for the suspect to arrive.
34. PW5 stated that at Ayweyo, PW3 made a phone call to the suspect, who arrived shortly after with an Itel phone. The officers apprehended the suspect – the Appellant – and recovered a phone from him. PW5 stated that upon recovering the phone from the Appellant, he confirmed the IMEI number of the phone as 357529548145488 and detailed its previous users, including the complainant. The Appellant was escorted to Boya Police Station and later transferred to Katito Police Station.
35. PW5 identified and produced the recovered phone as an exhibit, noting that that its IMEI number matched the one registered to the complainant as appearing in the packaging box that the complainant had.
36. Upon being cross examined, PW5 confirmed that at the time of arrest, the Appellant had two phones: the one that was produced as an exhibit and a smartphone.
37. The last prosecution witness was Police Constable Koech Weldon (PW6), who told the trial court that he was attached to Katito Police Station and performed general investigations. He was the investigating officer in the matter.
38. PW6 recalled that on 12th August, 2023, at about 1000hrs, he received a call from the complainant who informed him that he was at the station and wished to see him. Upon arrival, the officer recorded the complainant’s statement, in which he explained that he had been attacked and robbed on 7th August 2023, at about midnight, while on his way to a night vigil, by two assailants who were armed with pangas and rungus and his mobile phone, a black Itel valued at Ksh.1,995/- with IMEI number 357529548145488 and cash Ksh.11,200/- stolen from him. The complainant told the officer that he was injured during the attack and later sought treatment at Katito Hospital.
39. PW6 explained to the trial court that the suspect – the Appellant - had inserted his SIM card into the stolen phone and the phone was tracked and the suspect was tricked into a meeting PW3 at Ayweyo Market, where he was arrested by police officers and taken into custody. Investigations that followed confirmed that the phone’s IMEI matched the IMEI number that was provided bythe complainant, which was in a receipt and packaging box that the complainant provided. Felix. He further stated that the complainant had described one of the assailants as having dreadlocks.
40. Upon being cross examined, PW6 told the trial court that the suspect was tracked as he had inserted his SIM card into the stolen phone. He also clarified the phone numbers associated with the device: 0799*****7 registered to Lawrence Juma and inserted into the phone on 7th August, 2023; 0799*****5 registered to the complainant, inserted into the phone on on 27th July, 2023; and 0706*****0 registered to Anne Anyango, inserted into the phone on 4th July, 2023.
41. The officer produced as exhibits the receipt and packaging box for the phone that were provided by the complainant.
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 Nyakach and a jua kali artisan by occupation. He stated that on 12th August 2023 at about 9.30 a.m., he woke up and proceeded to work using a motorcycle. Before reaching his destination, he was stopped by two civilians who seized the motorcycle key and arrested him for a traffic offence, namely riding without a helmet and reflector jacket. He was taken to police cells together with another person.
44. The Appellant further testified that while in custody, a police officer asked them to mitigate. The other person who had been arrested with him allegedly gave money to the police and was released. The Appellant stated that he did not have money and was therefore retained in custody. He was later given a phone to call someone to assist him, but he was unable to reach anyone. At about 4.00 p.m., police officers from Katito Police Station picked him up from Boya Police station and took him to Katito Police Station.
45. The Appellant stated that he was placed in the cells at Katito Police Station, handcuffed and later taken to an office where his fingerprints were taken. He was subsequently taken to court where a charge was read to him, which he claimed he did not understand. He told the trial court that a phone was produced in court and he was asked whether it could be returned to its owner, to which he did not object.
46. On being cross-examined, the Appellant stated that on 7th August 2023 he was at his home. He maintained that he had never seen the phone before it was produced in court and that he had never inserted his SIM card into it. The Appellant further stated that he had not recorded a statement with the police and that he had never seen the complainant before. He reiterated that he was arrested with another person who was later released after allegedly giving money to the police, while he remained in custody because he did not give any money. He denied knowledge of the charges preferred against him.
47. The Appellant did not call any witness and the defence case was closed at that stage.
E. ANALYSIS & DETERMINATION BY THE TRIAL COURT.
48. Upon the close of the trial case, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, set out the following four issues for determination, in her judgement rendered on 3rd October, 2024:
a. Whether prosecution evidence on record is capable to sustain a conviction against the accused herein for the charge that he is facing.
b. Whether prosecution have proved its case against the accused herein to the required threshold in law in criminal cases.
c. Whether the defence raised has cast any doubt on the prosecution case.
d. Whether the accused is guilty as charged.
49. The learned trial Magistrate then went on to address and determine that the doctrine of recent possession was applicable in the case as the complainant’s stolen phone was allegedly recovered in the possession of the Appellant, soon after the attack and robbery.
50. Relying on the authorities of Athuman Salim Athuman vs Republic [2016] eKLR; Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic Cr Appeal No 272 of 2005; and Paul Mwita Robi V Republic Kisumu Cr Appeal No 200 Of 2008 she went on to state the position in law regarding the doctrine, that the same applies when an accused person is found in possession of property that has been recently stolen.
51. The learned trial Magistrate outlined the essential principle of the doctrine, that if the accused cannot provide a reasonable explanation for how they came into possession of the property, a presumption arises that they are either the thief or a receiver of the stolen goods and that the presumption is one of fact, and it shifts the evidential burden to the accused to account for their possession.
52. Further, the learned trial Magistrate correctly put it that the doctrine is applicable in securing a conviction but that the prosecution must establish three key elements: first, that the property was found with the suspect; second, that the property belongs to the complainant; and third, that the property was recently stolen and that the determination of what constitutes “recent” is flexible and depends on how quickly and easily the stolen property could have been transferred between individuals.
53. In analyzing and determining the identified issues, the trial Magistrate rendered herself as follows as to what would amount to an offence of robbery with violence:
“Section 295 of the penal code provides that any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
Section 296 (2) of the penal code provides that if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
In the case of Jeremiah Oloo Odira v Republic [2018] eKLR; it was held that:
“......on the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established; -
1. That the offender is armed with any dangerous or offensive weapon or instrument; or
2. The offender is the company of one or more other person or persons; or
3. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.”
54. The learned trial Magistrate then went on to determine the discerned issues as follows:
“From the prosecution evidence on record, the complainant herein was on his way to a funeral for a night vigil when he was attacked by two boys that were armed. One of them had dreadlocked hair and a mark at his chin. He was using the torch light from his phone which was on that enabled him to see his attackers. The one with dreadlocks had a panga that he used to cut him on his head, palm, finger after demanding him to surrender his phone and anything else that he had. He screamed and they fled away. He sought for help from his cousin that took him to hospital. Later he reported the incident to the police. The accused inserted his line in the stolen phone that was fortunately tracked leading to his arrest. Its IMEI number matched the one provided by the complainant in respect of the stolen phone.
Having considered all the above and the provisions of the law as well as the cited cases, I find that prosecution has proved its case against the accused herein beyond reasonable doubt as follows;
1. Prosecution evidence on record has squarely placed the accused herein at the scene of crime being on the way to a funeral venue where the complainant was headed; some fifty meters from his home where he was attacked; assaulted and robbed of his phone.
2. The description of the assailant provided by the complainant herein was sufficient to positively identify the accused herein as his attacker on the fateful night that had dreadlocked hair and a mark/scar below his chin however at the time of testifying, the accused herein had already shaved his hair and no longer had the dreadlocks. This was confirmed by both PW4, PC Teddy Chirongo, the arresting officer and PW6, PC Weldon Koech the investigating officer both of whom informed the court that by the time of arresting the accused and handing him over to their counter part at Katito police station, the accused herein indeed had dreadlocked hair; this was not disputed during cross-examination;
3. Prosecution availed in court as exhibits the recovered stolen phone from the complainant as well as receipt of ownership in the name of the complainant;
4. Prosecution established that the said phone had been stolen from the complainant and recently since the robbery incident occurred on 7/8/2023 while the said phone was recovered from the accused herein on 12/8/2023; I. e some three days after the robbery incident that this court deems as very recent;
5. Prosecution established that the accused herein was in company with another whom the complainant spotted as he moved away and that he was short; while the one with dreadlocks had a torch and panga;
6. Prosecution established to the courts satisfaction that the accused struck and wounded the complainant herein during the said robbery incident causing him to sustain injuries on his body as evidenced by the p3 form produced as exhibit that classified the injuries sustained by the complainant herein as harm.
7. The defence raised by the accused is mere denial and has not punched holes, distorted or weakened the prosecution evidence on record in any way that is unchallenged.
55. 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.
56. The instant appeal was canvassed by way of written submissions.
F. THE APPELLANT’S SUBMISSIONS ON THE APPEAL.
57. In his submissions, the Appellant contends that the trial court erred both in law and in fact in relying on the evidence of identification from a single eyewitness, PW1, under circumstances that rendered such evidence inherently unreliable. The incident occurred at night, around 2200 hours, in darkness and the attackers were strangers to the complainant.
58. The Appellant states that the complainant did not provide a description of the Appellant in his initial report to Katito Police Station on 8th August, 2023 and that the description of the Appellant was allegedly given to PW6 only on 12th August, 2023, after the Appellant’s arrest and subsequent exposure to PW1 and PW2 in broad daylight. He submits that no contemporaneous record of the description was maintained by PW6 and his assertion in court that the complainant described the Appellant was made during cross-examination and not in chief examination. The Appellant submits that this amounts to an afterthought and that dock identification, absent a properly conducted identification parade, is of no evidential value. Evidence regarding physical features such as dreadlocks or a scar obtained during or after arrest is therefore unreliable and inadmissible.
59. The Appellant further submits that the trial court erred in invoking the doctrine of recent possession as the prosecution failed to prove all its ingredients beyond a reasonable doubt. He states that ownership of the alleged stolen mobile phone was not established, as the phone box, IMEI number and receipts were not produced in court. He further submits that PW1 described the phone alleged to have been stolen as as an Itel black smartphone, yet the phone produced in court was not a smartphone, raising doubt as to whether the correct item was recovered.
60. Moreover, he states that no inventory was duly filled or signed to verify recovery from the Appellant. The Appellant relies on Letzur Teper s The Queen [1952] 20 H.C. 48, which he submits underscores that circumstantial evidence must be narrowly examined and independently corroborated to avoid fabrication or undue suspicion. He also cites Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights and others [2013] eKLR, emphasizing that there must be strict compliance with procedural rules when handling evidence.
61. The Appellant submits that electronic evidence allegedly linking him to the phone was improperly admitted. The Safaricom liaison officers were not called to authenticate the electronic records and PW3, PW5 and PW6 were neither experts nor the makers of the records. No electronic evidence certificates were produced pursuant to Sections 65(8) and 106(B) of the Evidence Act, to demonstrate lawful control over the computers or to verify the production of the records. Consequently, reliance on this evidence, he states, violated Article 50(4) of the Constitution, which guarantees the right to a fair trial.
62. The Appellant also relies on Hamis vs Director of Public Prosecution [1952] AC 694, where the court held that evidence obtained by trick from an accused person is inadmissible. For these reasons, the Appellant submits that the prosecution failed to establish the doctrine of recent possession beyond reasonable doubt.
63. On sentence, the Appellant contends that the trial court erred in law by denying him the right to the least prescribed sentence under Articles 25(c) and 50(2)(p) of the Constitution. He relies on the decision in Shaban Salim Ramadhan & 8 Others (Constitutional Petition No. 5 of 2022, consolidated with No. 6 of 2022, High Court of Kenya at Mombasa, which declared the mandatory nature of the death penalty under Sections 296(2) and 297(2) of the Penal Code unconstitutional.
64. The Appellant urges that, in the event the appeal against conviction is dismissed, the court should impose the least prescribed sentence, taking into account the time he has spent in custody during the trial, pursuant to Section 333(2) of the Criminal Procedure Code and paragraph 5.1.21 of the Sentencing Policy Guidelines.
65. In view of the foregoing, the Appellant prays that this Court allows the appeal, quashes the conviction and sets aside the sentence. In the alternative, the Appellant requests that the Court imposes the minimum sentence permissible by law, taking into account the time spent in custody during trial.
G. THE RESPONDENT’S SUBMISSIONS ON THE APPEAL.
66. In its written submissions, the Respondent opposes the appeal against the conviction and death sentence for the offence of robbery with violence. The Respondent submits that the trial court correctly invoked th
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