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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E002 OF 2025
MAXWEL OMONDI alias RIGO alias EUGENE……..……..………….APPELLANT
VERSUS
REPUBLIC....…….……………………………………….….………….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Mary A. Ochieng (PM)in Kitale Criminal Case No. E1704 of 2024 delivered on 8 th January, 2025)
JUDGMENT
The appellant was arraigned before the Principal Magistrate at Kitale in Criminal Case No. E1704 of 2024 facing two charges. The first count was the offence of Robbery with violence contrary to section 296 as read with section 296(2) of the Penal Code. The particulars of the offence were set out to be that on the 10 th day of May 2024 at Kipsongo area in Trans Nzoia West Sub County within Trans Nzoia County, the appellant jointly with others not before court armed with a dangerous weapon to wit a knife robbed Alex Migwi of a mobile phone IMEI No. 869378049419047 make Huawei Y5, ear pod and open shoes all worth Kshs 9,000/- and immediately before the time of such robbery threatened to use actual violence against the said Alex Migwi.
The second count was being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act of 1994. The particulars of the offence were set out to be that on the 17 th day of May 2024 at Kipsongo area in Trans Nzoia West Sub County within Trans Nzoia County, the appellant was found being in possession of narcotic drugs to wit; twelve rolls of dry green plant material cannabis sativa (bhang) with street value of Kshs 600/- which is not a form of medical preparation in contravention of the said Act.
The appellant pleaded not guilty to the charges, and the case proceeded to a full trial, during which the prosecution called a total of six (6) witnesses whose evidence is summarized as below.
PW1, the complainant, testified that he is a businessman residing in Police Line and operates a gamers’ lounge selling movies and PlayStation services at Kisongo. He stated that on 10/5/2024, he closed his shop at 10:00 AM and proceeded home. Upon reaching the gate opposite the Polytechnic, he was accosted by several boys who took him to the side of the road and produced a knife. They stole his Huawei phone valued at Kshs. 8,000/-, ransacked his pockets, and took Kshs. 20/-, his earphones, and shoes. PW1 further testified that he identified Doly, Melo, and Eugene (the appellant) with the assistance of the Polytechnic lights, which operate in a sequence of one minute on and then off. He stated that he knew Doly, who had been in his cybercafé on the day of the incident, and that Eugene spoke in a loud voice during the attack. He further stated that he did not know the appellant prior to the incident and that, following the appellant’s arrest, he assisted the authorities in locating the stolen phone.
On cross-examination, PW1 stated that he was seeing the appellant for the third time and that he did not identify the appellant on the night of the incident, as the location was dark. He further stated that his phone was recovered following the appellant’s arrest and that he had hidden it in another person’s house.
On re-examination, PW1 stated that the phone was recovered from the house of one Agnes, located about 500 meters from the house of the appellant, and that it was the appellant who led the police to her house
PW2, a student at Kitale Polytechnic, testified that on 10/5/2024 at 10:40 AM, PW1, who had closed his shop, returned without shoes and appeared panicked. PW1 asked him to follow the individuals who had robbed him while armed, but PW2 told him it was not safe. He further stated that he then paid for a motorcycle to take the appellant home and inform his parents.
PW3, a police constable, testified that he was part of the arresting team. He stated that the complainant led them to the appellant’s house on 16/5/2024 at 11:00 PM. The appellant informed them that he had sold the phone to one Agnes. PW3 further alleged that the appellant had taken the phone to Agnes upon realizing that the complainant had reported the matter to the police. He added that during their visit, they recovered twelve (12) rolls of bhang from the appellant’s house.
On cross-examination, PW3 denied framing the appellant and stated that it was the complainant who led them to the appellant’s house, adding that the complainant informed them that he knew him
PW4 testified that she is a youth leader who received the phone in question from one Melo, who asked her to deliver it to Chebet or a friend of Michael. She went to Michael, who instructed her to wait for the friend, and subsequently took the phone to her house. At 4:00 PM, she went to the chief’s office, but it was closed. She then went to the PlayStation but did not find the owner. She returned home, and at 1:00 AM, four police officers accompanied by the appellant knocked at her door. She handed over the phone that Melo had given her. On cross-examination, PW4 maintained that it was Melo who had given her the phone.
PW5 testified that he was one of the arresting officers. He stated that on 16/5/2024, at 11:00 PM, they proceeded to the appellant’s house in Kapsongo upon receiving information that the person who had stolen a phone was present there. At the appellant’s house, they recovered twelve (12) rolls of bhang. He further testified that the appellant led them to the house of Agnes (PW4), where they recovered the stolen phone.
PW6, the investigating officer, testified that on 11/5/024, the complainant reported that he had been accosted by six boys who took his phone and shoes. On 12/5/2024, PW6 received information that one of the attackers was at a house in Kapsongo. They proceeded to the house, where they recovered twelve (12) rolls of bhang in the right pocket of the suspect’s shirt. The suspect then led them to the house of PW4, who handed over a Huawei phone that the appellant and another individual had given to her.
The witness then prepared an inventory of recovered items and in court produced the following exhibits: the phone as PEXH 1, a receipt for Kshs. 8,000/- as PEXH 2, twelve rolls of bhang as PEXH 3a, a report from the Government Chemist dated 21/5/2024 as PEXH 3b, and the inventory dated 12/5/2024 as PEXH 4. He further stated that the complainant identified the appellant with the aid of the streetlight near Kitale Polytechnic, and that no formal identification parade was conducted, as the complainant had already identified the appellant. On cross-examination, he stated that he visited the scene during the daytime but did not find anything of evidentiary value there.
The evidence of PW6 marked the close of the prosecution’s case. The court determined that a prima facie case had been established and accordingly, the accused was called upon to offer his defense.
The appellant was the sole defense witness and gave sworn evidence. He testified that he is a garbage collector residing in Kapsongo. He denied the charge of robbery with violence but admitted to having been arrested in possession of bhang. He stated that he was arrested at 11:00 PM and that the following day he was interrogated regarding his knowledge of Doly and Melo, to which he responded that he did not know them. He further stated that the complainant was then brought in and declined to recognize him.
Upon cross-examination, the appellant told the court that he denied having been involved in the recovery of the phone, denied having led the police to the recovery and reiterated that the complainant told the police that the appellant was unknown to him. He also said that he was not known to Doli and Melo.
In a judgment delivered by the trial court on 8/1/2025, the appellant was found guilty and convicted on both counts. On the first count of robbery with violence, he was sentenced to ten (10) years’ imprisonment while on the second count of being in possession of narcotic drugs, he was fined Kshs 1,000/- or, in default of payment, thirty (30) days’ imprisonment.
Dissatisfied with the judgment of the trial court, the appellant filed a petition of appeal along with amended grounds of appeal, challenging the conviction and sentence on the grounds that; that the evidence of the prosecution witnesses was riddled with contradictions and inconsistencies; that the trial magistrate failed to take into account that his rights under Articles 25(c) and 50(6)(b) of the Constitution were violated; that his defense and mitigation were not duly considered; that identification was not proved to the required standard; that the offence of robbery with violence was not established; and that his rights were violated by being detained in custody for more than 24 hours before being produced in court.
The appeal was directed to be argued by way of written submissions which direction was duly complied with by both parties.
Appellant’s Submissions
The appellant challenges his identification as the perpetrator, contending that it was based solely on the testimony of PW1 and PW5. He states that PW1’s evidence was that “Eugene was speaking in a loud voice,” arguing that many people can speak loudly. He further contends that the trial court gave scant attention to the conditions prevailing at the time of the robbery, which rendered identification difficult. The appellant submits that the court failed to exercise the necessary caution by not inquiring how PW1 was able to identify the robbers, given that the incident occurred at 10:00 PM and involved multiple assailants.
The appellant refers the court to the decision of the Court of Appeal in Joseph Muchangi & another v R [2013] eKLR , where it was held that evidence of visual identification should be approached with great care and caution. Greater care is required where conditions for favorable identification are poor, and before relying on such evidence, the trial court must make inquiries regarding the presence and nature of light, its intensity, the location and source of light, and the duration for which the witness observed the accused. The appellant contends that PW1 did not identify him to the required standard.
Regarding whether the offence of robbery with violence was proved to the required standard, the appellant contends that the prosecution did not discharge this burden. He explains that, as set out in Johana Ndung’u v R , the ingredients of robbery with violence include: the offender being armed with any dangerous weapon or instrument; the offender being in the company of one or more persons; or, at or immediately after the robbery, the offender wounding, beating, striking, or using violence on any person. The appellant submits that none of the prosecution witnesses indicated the role he played in the robbery but only referred to other robbers and did not link him to the offence. He adds that, as he was not properly identified as the perpetrator, the prosecution failed to prove its case to the required standard.
The appellant further submits that an arrested person has the right to be presented to court within 24 hours of arrest. He contends that this right was violated, as the charge sheet indicates he was apprehended on 17/5/2024 but presented in court on 20/5/2024. He seeks a remedy for this violation.
Respondent’s Submissions
The respondent submits that, in law, only one ingredient of the offence of robbery with violence needs to be proved. In support of this proposition, the respondent refers the court to the case of Reimond Munene Kamau & another v R [2018] KECA 250 (KLR).
The respondent refers to the testimony of PW1, who stated that he was attacked by a group of boys and confirmed that they were many, even though he did not specify the exact number. He further confirmed that one of them produced a knife. The respondent contends that this evidence demonstrates that there was more than one person involved and that they were armed, thereby satisfying the ingredients of the offence of robbery with violence.
On the ground that the trial magistrate erred in failing to note alleged contradictions and inconsistencies in the prosecution evidence, the respondent submits that PW3, PW5, and PW6 confirmed that the appellant was linked to the offence through reliable information he provided regarding the whereabouts of the phone, which led to its recovery. The respondent questions the testimony of PW4, who claimed not to know the complainant and that they first met at the police station, asking how she could have known where to return the phone if not from information provided by the appellant. The respondent further submits that, even if there were minor inconsistencies, they did not dilute or weaken the prosecution’s case.
On the alleged infringement of the appellant’s rights under Articles 25(c) and 50(6)(b) of the Constitution, the respondent submits that Article 50(6)(b) provides that a person convicted of a criminal offence may petition the High Court for a new trial if new and compelling evidence becomes available. The respondent contends that the trial proceedings do not reveal any new compelling evidence and that the trial court did not infringe any of the appellant’s rights.
On the ground that the trial court failed to consider the appellant’s defense and mitigation, the respondent submits that the court considered both and found them unmeritorious.
Regarding mitigation, the only claim by the appellant was that he had a young family, which was unsupported by evidence. The respondent notes that the trial court sentenced the appellant to ten (10) years’ imprisonment for the offence of robbery with violence. It further seeks enhancement of the sentence imposed by the trial court for the offence of being in possession of narcotic drugs, which was a fine of Kshs. 1,000/= or, in default, thirty (30) days’ imprisonment.
The respondent prays that the appeal be dismissed for lack of merit.
Issues For Determination
The Court has carefully considered the grounds of appeal, the record of the trial court, the written submissions by both the appellant and the respondent and isolate the following issues arise for its determination:
Whether the offence of robbery with violence was proved to the requisite standards?
Whether the appellant was properly identified as one of the perpetrators?
Whether the sentence needs to be enhanced?
Analysis
Whether the offence of robbery with violence was proved
The Court of Appeal in Dima Denge & Others v Republic, CRA 300 of 2007 , clarified that the elements under Section 296(2) of the Penal Code are disjunctive, and proof of any one of them is sufficient to sustain a conviction for robbery with violence. The court thus proceeds from the learning that at the trial the prosecution had the duty to prove at least one of the ingredients of the offence as coded in the statute.
As held in Johana Ndungu v Republic, CRA 116 of 1995 , the essential ingredients of the offence of robbery with violence include; the offender being armed with a dangerous or offensive weapon or instrument; or the offender is in the company of one or more other persons; or the offender wounds, beats, strikes, or uses any other form of violence at or immediately before or after the robbery.
In the present case, the complainant testified that he was accosted by a group of boys who were many in number and armed with a knife. The prosecution therefore established that there was an offensive weapon being a knife and was also in the company of others. The court finds that two ingredients of the offence were sufficiently proved as the appellant never challenged that evidence because he denied having been at the scene.
Whether the appellant was properly identified as one of the perpetrators?
The only eyewitness to the incident was PW1. The attack occurred at night under circumstances that were far from favourable for a reliable identification. He said the place was dark.
The Court of Appeal in Roria v Republic [1967] EA 583 emphasized the need for great caution where a conviction rests solely on identification evidence, especially where the identification is made by a single witness. The Court stressed the duty to ensure that, in all the circumstances, it is safe to act on such evidence.
The principles governing identification were further articulated in Charo Changawa Karisa v Republic [2018] KEHC 3034 (KLR) , where the Court, citing Lord Widgery CJ in R v Turnbull and Others [1976] 3 All ER 549 , emphasized the duty of courts to subject identification evidence to careful scrutiny. The Court underscored the need to consider factors such as the duration of the encounter, the lighting conditions at the scene, the distance between the witness and the suspect, the presence of any obstructions, whether the witness knew the suspect beforehand, the time lapse between the incident and the identification, and whether the witness’s initial description remained consistent with the accused’s actual appearance.
PW1 testified that he was attacked at 10:00 p.m. by several assailants who were armed with a knife. He stated that he relied on lights from the Polytechnic, which reportedly operated in one-minute intervals, alternating between on and off, to identify his attackers. He further claimed that he identified the appellant because he was “the loudest.” Notably, PW1 acknowledged that he did not know the appellant prior to the incident. Given the intermittent lighting, the tension and anxiety inherent in a sudden attack, and the absence of prior familiarity, the prevailing circumstances were wholly unfavorable for making a positive and reliable identification.
On cross-examination, PW1 confirmed that he did not identify the appellant on the night of the attack and that he only recognized two individuals, namely Doly and Melo. The two were not in court and no attempt was made to know more about them.
Additionally, the evidence of PW1, PW3, and PW5 established that the stolen phone was recovered from PW4, who stated that she received it from Doly, one of the individuals identified by the complainant. In light of this, and considering that the complainant had never seen the appellant before, the basis upon which he later concluded that the appellant was one of the assailants remains unclear. It is equally unexplained how the police were led to the appellant’s residence if he was unknown to the complainant and was not identified at the scene.
Considering the totality of the evidence, the prosecution failed to place the appellant at the scene of the offence just as it failed to connect the appellant with the recovery of the phone. The conditions for identification were unreliable and the evidence fell short of the threshold required to sustain a safe conviction. The court entertain doubt on whether the complainant was able to positively identify the appellant and how the recovered phone was link to incriminate the appellant. That doubt is thus resolved in favour of the appellant.
Whether the sentence for the narcotics charge may be enhanced
The respondent urges the Court to enhance the sentence imposed on the second count of possession of narcotic drugs where the appellant was fined Kshs. 1,000, or in default, sentenced to 30 days’ imprisonment.
The Court of Appeal in J.J.W. v Republic [2013] eKLR emphasized that although the High Court has power under Section 354(3)(ii) and (iii) of the Criminal Procedure Code to enhance a sentence, such power must be exercised cautiously. An appellant must be notified in advance that an enhancement is being considered, either through a cross-appeal or through an explicit warning by the Court at the outset of the hearing.
As the record does not show that the appellant was issued with any notice of enhancement, this Court declines to interfere with the sentence imposed on the second count.
The record also indicates that the appellant has been in custody since his arrest on 17/5/2024. The period already served satisfies the default custodial sentence of 30 days imposed for the narcotics offence.
Flowing from the above conclusions, the appeal is adjudged to be merited and is thus allowed. The conviction on the first count of robbery with violence is quashed and the sentence set aside. The appellant shall be released forthwith unless he is otherwise lawfully held.
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E002 OF 2025
MAXWEL OMONDI alias RIGO alias EUGENE……..……..………….APPELLANT
VERSUS
REPUBLIC....…….……………………………………….….………….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Mary A. Ochieng (PM)in Kitale Criminal Case No. E1704 of 2024 delivered on 8 th January, 2025)
JUDGMENT
The appellant was arraigned before the Principal Magistrate at Kitale in Criminal Case No. E1704 of 2024 facing two charges. The first count was the offence of Robbery with violence contrary to section 296 as read with section 296(2) of the Penal Code. The particulars of the offence were set out to be that on the 10 th day of May 2024 at Kipsongo area in Trans Nzoia West Sub County within Trans Nzoia County, the appellant jointly with others not before court armed with a dangerous weapon to wit a knife robbed Alex Migwi of a mobile phone IMEI No. 869378049419047 make Huawei Y5, ear pod and open shoes all worth Kshs 9,000/- and immediately before the time of such robbery threatened to use actual violence against the said Alex Migwi.
The second count was being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act of 1994. The particulars of the offence were set out to be that on the 17 th day of May 2024 at Kipsongo area in Trans Nzoia West Sub County within Trans Nzoia County, the appellant was found being in possession of narcotic drugs to wit; twelve rolls of dry green plant material cannabis sativa (bhang) with street value of Kshs 600/- which is not a form of medical preparation in contravention of the said Act.
The appellant pleaded not guilty to the charges, and the case proceeded to a full trial, during which the prosecution called a total of six (6) witnesses whose evidence is summarized as below.
PW1, the complainant, testified that he is a businessman residing in Police Line and operates a gamers’ lounge selling movies and PlayStation services at Kisongo. He stated that on 10/5/2024, he closed his shop at 10:00 AM and proceeded home. Upon reaching the gate opposite the Polytechnic, he was accosted by several boys who took him to the side of the road and produced a knife. They stole his Huawei phone valued at Kshs. 8,000/-, ransacked his pockets, and took Kshs. 20/-, his earphones, and shoes. PW1 further testified that he identified Doly, Melo, and Eugene (the appellant) with the assistance of the Polytechnic lights, which operate in a sequence of one minute on and then off. He stated that he knew Doly, who had been in his cybercafé on the day of the incident, and that Eugene spoke in a loud voice during the attack. He further stated that he did not know the appellant prior to the incident and that, following the appellant’s arrest, he assisted the authorities in locating the stolen phone.
On cross-examination, PW1 stated that he was seeing the appellant for the third time and that he did not identify the appellant on the night of the incident, as the location was dark. He further stated that his phone was recovered following the appellant’s arrest and that he had hidden it in another person’s house.
On re-examination, PW1 stated that the phone was recovered from the house of one Agnes, located about 500 meters from the house of the appellant, and that it was the appellant who led the police to her house
PW2, a student at Kitale Polytechnic, testified that on 10/5/2024 at 10:40 AM, PW1, who had closed his shop, returned without shoes and appeared panicked. PW1 asked him to follow the individuals who had robbed him while armed, but PW2 told him it was not safe. He further stated that he then paid for a motorcycle to take the appellant home and inform his parents.
PW3, a police constable, testified that he was part of the arresting team. He stated that the complainant led them to the appellant’s house on 16/5/2024 at 11:00 PM. The appellant informed them that he had sold the phone to one Agnes. PW3 further alleged that the appellant had taken the phone to Agnes upon realizing that the complainant had reported the matter to the police. He added that during their visit, they recovered twelve (12) rolls of bhang from the appellant’s house.
On cross-examination, PW3 denied framing the appellant and stated that it was the complainant who led them to the appellant’s house, adding that the complainant informed them that he knew him
PW4 testified that she is a youth leader who received the phone in question from one Melo, who asked her to deliver it to Chebet or a friend of Michael. She went to Michael, who instructed her to wait for the friend, and subsequently took the phone to her house. At 4:00 PM, she went to the chief’s office, but it was closed. She then went to the PlayStation but did not find the owner. She returned home, and at 1:00 AM, four police officers accompanied by the appellant knocked at her door. She handed over the phone that Melo had given her. On cross-examination, PW4 maintained that it was Melo who had given her the phone.
PW5 testified that he was one of the arresting officers. He stated that on 16/5/2024, at 11:00 PM, they proceeded to the appellant’s house in Kapsongo upon receiving information that the person who had stolen a phone was present there. At the appellant’s house, they recovered twelve (12) rolls of bhang. He further testified that the appellant led them to the house of Agnes (PW4), where they recovered the stolen phone.
PW6, the investigating officer, testified that on 11/5/024, the complainant reported that he had been accosted by six boys who took his phone and shoes. On 12/5/2024, PW6 received information that one of the attackers was at a house in Kapsongo. They proceeded to the house, where they recovered twelve (12) rolls of bhang in the right pocket of the suspect’s shirt. The suspect then led them to the house of PW4, who handed over a Huawei phone that the appellant and another individual had given to her.
The witness then prepared an inventory of recovered items and in court produced the following exhibits: the phone as PEXH 1, a receipt for Kshs. 8,000/- as PEXH 2, twelve rolls of bhang as PEXH 3a, a report from the Government Chemist dated 21/5/2024 as PEXH 3b, and the inventory dated 12/5/2024 as PEXH 4. He further stated that the complainant identified the appellant with the aid of the streetlight near Kitale Polytechnic, and that no formal identification parade was conducted, as the complainant had already identified the appellant. On cross-examination, he stated that he visited the scene during the daytime but did not find anything of evidentiary value there.
The evidence of PW6 marked the close of the prosecution’s case. The court determined that a prima facie case had been established and accordingly, the accused was called upon to offer his defense.
The appellant was the sole defense witness and gave sworn evidence. He testified that he is a garbage collector residing in Kapsongo. He denied the charge of robbery with violence but admitted to having been arrested in possession of bhang. He stated that he was arrested at 11:00 PM and that the following day he was interrogated regarding his knowledge of Doly and Melo, to which he responded that he did not know them. He further stated that the complainant was then brought in and declined to recognize him.
Upon cross-examination, the appellant told the court that he denied having been involved in the recovery of the phone, denied having led the police to the recovery and reiterated that the complainant told the police that the appellant was unknown to him. He also said that he was not known to Doli and Melo.
In a judgment delivered by the trial court on 8/1/2025, the appellant was found guilty and convicted on both counts. On the first count of robbery with violence, he was sentenced to ten (10) years’ imprisonment while on the second count of being in possession of narcotic drugs, he was fined Kshs 1,000/- or, in default of payment, thirty (30) days’ imprisonment.
Dissatisfied with the judgment of the trial court, the appellant filed a petition of appeal along with amended grounds of appeal, challenging the conviction and sentence on the grounds that; that the evidence of the prosecution witnesses was riddled with contradictions and inconsistencies; that the trial magistrate failed to take into account that his rights under Articles 25(c) and 50(6)(b) of the Constitution were violated; that his defense and mitigation were not duly considered; that identification was not proved to the required standard; that the offence of robbery with violence was not established; and that his rights were violated by being detained in custody for more than 24 hours before being produced in court.
The appeal was directed to be argued by way of written submissions which direction was duly complied with by both parties.
Appellant’s Submissions
The appellant challenges his identification as the perpetrator, contending that it was based solely on the testimony of PW1 and PW5. He states that PW1’s evidence was that “Eugene was speaking in a loud voice,” arguing that many people can speak loudly. He further contends that the trial court gave scant attention to the conditions prevailing at the time of the robbery, which rendered identification difficult. The appellant submits that the court failed to exercise the necessary caution by not inquiring how PW1 was able to identify the robbers, given that the incident occurred at 10:00 PM and involved multiple assailants.
The appellant refers the court to the decision of the Court of Appeal in Joseph Muchangi & another v R [2013] eKLR , where it was held that evidence of visual identification should be approached with great care and caution. Greater care is required where conditions for favorable identification are poor, and before relying on such evidence, the trial court must make inquiries regarding the presence and nature of light, its intensity, the location and source of light, and the duration for which the witness observed the accused. The appellant contends that PW1 did not identify him to the required standard.
Regarding whether the offence of robbery with violence was proved to the required standard, the appellant contends that the prosecution did not discharge this burden. He explains that, as set out in Johana Ndung’u v R , the ingredients of robbery with violence include: the offender being armed with any dangerous weapon or instrument; the offender being in the company of one or more persons; or, at or immediately after the robbery, the offender wounding, beating, striking, or using violence on any person. The appellant submits that none of the prosecution witnesses indicated the role he played in the robbery but only referred to other robbers and did not link him to the offence. He adds that, as he was not properly identified as the perpetrator, the prosecution failed to prove its case to the required standard.
The appellant further submits that an arrested person has the right to be presented to court within 24 hours of arrest. He contends that this right was violated, as the charge sheet indicates he was apprehended on 17/5/2024 but presented in court on 20/5/2024. He seeks a remedy for this violation.
Respondent’s Submissions
The respondent submits that, in law, only one ingredient of the offence of robbery with violence needs to be proved. In support of this proposition, the respondent refers the court to the case of Reimond Munene Kamau & another v R [2018] KECA 250 (KLR).
The respondent refers to the testimony of PW1, who stated that he was attacked by a group of boys and confirmed that they were many, even though he did not specify the exact number. He further confirmed that one of them produced a knife. The respondent contends that this evidence demonstrates that there was more than one person involved and that they were armed, thereby satisfying the ingredients of the offence of robbery with violence.
On the ground that the trial magistrate erred in failing to note alleged contradictions and inconsistencies in the prosecution evidence, the respondent submits that PW3, PW5, and PW6 confirmed that the appellant was linked to the offence through reliable information he provided regarding the whereabouts of the phone, which led to its recovery. The respondent questions the testimony of PW4, who claimed not to know the complainant and that they first met at the police station, asking how she could have known where to return the phone if not from information provided by the appellant. The respondent further submits that, even if there were minor inconsistencies, they did not dilute or weaken the prosecution’s case.
On the alleged infringement of the appellant’s rights under Articles 25(c) and 50(6)(b) of the Constitution, the respondent submits that Article 50(6)(b) provides that a person convicted of a criminal offence may petition the High Court for a new trial if new and compelling evidence becomes available. The respondent contends that the trial proceedings do not reveal any new compelling evidence and that the trial court did not infringe any of the appellant’s rights.
On the ground that the trial court failed to consider the appellant’s defense and mitigation, the respondent submits that the court considered both and found them unmeritorious.
Regarding mitigation, the only claim by the appellant was that he had a young family, which was unsupported by evidence. The respondent notes that the trial court sentenced the appellant to ten (10) years’ imprisonment for the offence of robbery with violence. It further seeks enhancement of the sentence imposed by the trial court for the offence of being in possession of narcotic drugs, which was a fine of Kshs. 1,000/= or, in default, thirty (30) days’ imprisonment.
The respondent prays that the appeal be dismissed for lack of merit.
Issues For Determination
The Court has carefully considered the grounds of appeal, the record of the trial court, the written submissions by both the appellant and the respondent and isolate the following issues arise for its determination:
Whether the offence of robbery with violence was proved to the requisite standards?
Whether the appellant was properly identified as one of the perpetrators?
Whether the sentence needs to be enhanced?
Analysis
Whether the offence of robbery with violence was proved
The Court of Appeal in Dima Denge & Others v Republic, CRA 300 of 2007 , clarified that the elements under Section 296(2) of the Penal Code are disjunctive, and proof of any one of them is sufficient to sustain a conviction for robbery with violence. The court thus proceeds from the learning that at the trial the prosecution had the duty to prove at least one of the ingredients of the offence as coded in the statute.
As held in Johana Ndungu v Republic, CRA 116 of 1995 , the essential ingredients of the offence of robbery with violence include; the offender being armed with a dangerous or offensive weapon or instrument; or the offender is in the company of one or more other persons; or the offender wounds, beats, strikes, or uses any other form of violence at or immediately before or after the robbery.
In the present case, the complainant testified that he was accosted by a group of boys who were many in number and armed with a knife. The prosecution therefore established that there was an offensive weapon being a knife and was also in the company of others. The court finds that two ingredients of the offence were sufficiently proved as the appellant never challenged that evidence because he denied having been at the scene.
Whether the appellant was properly identified as one of the perpetrators?
The only eyewitness to the incident was PW1. The attack occurred at night under circumstances that were far from favourable for a reliable identification. He said the place was dark.
The Court of Appeal in Roria v Republic [1967] EA 583 emphasized the need for great caution where a conviction rests solely on identification evidence, especially where the identification is made by a single witness. The Court stressed the duty to ensure that, in all the circumstances, it is safe to act on such evidence.
The principles governing identification were further articulated in Charo Changawa Karisa v Republic [2018] KEHC 3034 (KLR) , where the Court, citing Lord Widgery CJ in R v Turnbull and Others [1976] 3 All ER 549 , emphasized the duty of courts to subject identification evidence to careful scrutiny. The Court underscored the need to consider factors such as the duration of the encounter, the lighting conditions at the scene, the distance between the witness and the suspect, the presence of any obstructions, whether the witness knew the suspect beforehand, the time lapse between the incident and the identification, and whether the witness’s initial description remained consistent with the accused’s actual appearance.
PW1 testified that he was attacked at 10:00 p.m. by several assailants who were armed with a knife. He stated that he relied on lights from the Polytechnic, which reportedly operated in one-minute intervals, alternating between on and off, to identify his attackers. He further claimed that he identified the appellant because he was “the loudest.” Notably, PW1 acknowledged that he did not know the appellant prior to the incident. Given the intermittent lighting, the tension and anxiety inherent in a sudden attack, and the absence of prior familiarity, the prevailing circumstances were wholly unfavorable for making a positive and reliable identification.
On cross-examination, PW1 confirmed that he did not identify the appellant on the night of the attack and that he only recognized two individuals, namely Doly and Melo. The two were not in court and no attempt was made to know more about them.
Additionally, the evidence of PW1, PW3, and PW5 established that the stolen phone was recovered from PW4, who stated that she received it from Doly, one of the individuals identified by the complainant. In light of this, and considering that the complainant had never seen the appellant before, the basis upon which he later concluded that the appellant was one of the assailants remains unclear. It is equally unexplained how the police were led to the appellant’s residence if he was unknown to the complainant and was not identified at the scene.
Considering the totality of the evidence, the prosecution failed to place the appellant at the scene of the offence just as it failed to connect the appellant with the recovery of the phone. The conditions for identification were unreliable and the evidence fell short of the threshold required to sustain a safe conviction. The court entertain doubt on whether the complainant was able to positively identify the appellant and how the recovered phone was link to incriminate the appellant. That doubt is thus resolved in favour of the appellant.
Whether the sentence for the narcotics charge may be enhanced
The respondent urges the Court to enhance the sentence imposed on the second count of possession of narcotic drugs where the appellant was fined Kshs. 1,000, or in default, sentenced to 30 days’ imprisonment.
The Court of Appeal in J.J.W. v Republic [2013] eKLR emphasized that although the High Court has power under Section 354(3)(ii) and (iii) of the Criminal Procedure Code to enhance a sentence, such power must be exercised cautiously. An appellant must be notified in advance that an enhancement is being considered, either through a cross-appeal or through an explicit warning by the Court at the outset of the hearing.
As the record does not show that the appellant was issued with any notice of enhancement, this Court declines to interfere with the sentence imposed on the second count.
The record also indicates that the appellant has been in custody since his arrest on 17/5/2024. The period already served satisfies the default custodial sentence of 30 days imposed for the narcotics offence.
Flowing from the above conclusions, the appeal is adjudged to be merited and is thus allowed. The conviction on the first count of robbery with violence is quashed and the sentence set aside. The appellant shall be released forthwith unless he is otherwise lawfully held.
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