(An appeal from the conviction and sentence of Hon. G. Adhiambo (SRM) at Ukwala SRM’s Court Criminal Case No. 351 of 2016 dated 26 th July 2016).
1. The appeal arises from the conviction and sentence of Hon. G. Adhiambo dated 26 th July 2016 vide Ukwala SRM’s Court Criminal Case No. 351 of 2016 wherein the Appellant who faced a charge of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code was convicted and sentenced to death.
2. The Appellant herein Michael Onyango Owala was aggrieved by the aforesaid conviction and sentence and duly filed his Petition of Appeal dated 1/8/2017 wherein he raised the following grounds of appeal:
i) That the learned trial magistrate erred in law in convicting the Appellant for the offence of robbery with violence contrary to Section 296(2) of the Penal Code when there was insufficient evidence to support the same.
ii) That the learned trial magistrate failed to give due consideration to the fact that the Appellant’s name was not recorded at Ukwala Police Station OB in relation to the alleged robbery.
iii) That the learned trial magistrate erred in law when she made a finding that the Appellant had dealt mainly on the evidence of his arrest when the Appellant had indeed challenged the entire prosecution’s evidence in cross examination.
iv) That the conduct of the Appellant between the date of the alleged offence and his arrest is that of an innocent man.
v) That the defence of alibi raised by the Appellant was not considered at all by the trial magistrate.
vi) That the conviction of the Appellant was against the weight of the evidence on record.
The Appellant also filed supplementary grounds of appeal dated 14/8/2025 which are as follows:
i) That the trial court erred in law and in fact in not making a finding that the identifying witnesses did not give the description or the name of the Appellant in their first report.
ii) The trail court erred in law and in fact in accepting the evidence of identification of the prosecution witnesses without considering the circumstances under which they came to be made.
iii) That the trial court erred in law and in fact in not weighing the contradictions, discrepancies and inconsistencies that were inconsequential to conviction.
iv) That the trial court erred in law and in fact in not making a finding that lack of properly organized identification parade to PW3 and PW4 was fatal to their identification.
v) That the trial court erred in law and in fact in not making a finding that the doctrine of recent possession was not proved against the Appellant beyond a reasonable standard.
vi) That the trial court erred in law and in fact in admitting the evidence that was not admissible.
vii) That the trial court erred in law and in fact in denying the Appellant his absolute right to a least prescribed sentence pursuant to Article 25(c) and 50 (2) (p) of the Constitution of Kenya 2010.
The Appellant therefore prayed that the appeal be allowed and the conviction quashed and sentence of death be set aside and he be set at liberty unless otherwise lawfully held.
3. This being the first appellate court, its duty is to subject the evidence as a whole to a fresh and exhaustive examination so as to arrive at its own decision and that it must weigh the evidence and draw its own conclusions and findings while making due allowance for the fact that only the trial court had the advantage of hearing and seeing the witnesses. See Okeno vs R [1972] EA 32.
4. The Appellant herein faced a charge of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 26 th October 2014 at Rang’ala Area in Ugunja District within Siaya County jointly with others not before the court while armed with a dangerous weapon namely a firearm, robbed Joseph Makau Mwangangi of a motor vehicle registration number KCA 160J FRR Isuzu Canter while loaded with 700 nets of onions all valued at Kshs4 millions and immediately at the time of such robbery used actual violence to the said Joseph Makau Mwangangi.
5. The Appellant pleaded not guilty to the charge and thus the hearing commenced in earnest on 22/7/2016.
6. Joseph Makau Mwangangi (PW1) testified that he was in Mombasa when he was requested by the registered owner of the lorry registration KCA 160J make FRR Isuzu Canter to drive the same to Sudan to deliver some goods belonging to one of her customers who had sought to supply goods to Sudan. That he started the journey from Nairobi on 19/10/2014 in company of the husband to the owner of the goods and on reaching Kericho, the husband of the owner alighted after giving him Kshs65,000/= for accommodation and service of the lorry as it went to Sudan and back. That on reaching Kisumu, he felt sleepy and that the owner of the goods took over as he went to sleep. That he was later woken up by gunshots and that he saw a saloon car had blocked their way. That two occupants emerged from the saloon car and ordered them to open the lorry door. That the robbers managed to get in and started assaulting the owner of the luggage whom they frog matched him to the saloon car where they were ordered to surrender all phones and STM cards. That the robbers drove them for a long distance before they tied their hands and legs and bundled them in the boot of the car and then drove them to a certain sugar cane plantation where they dumped them there. That he was able to identify the Appellant as he mastered his face quite well by the use of the lorry’s headlights and that they had engaged on a conversation with him regarding the condition of the lorry. That they were abandoned at the sugar plantation around 7.00 am – 7.30 am. That they later managed to untie themselves and sought help from good Samaritans. It was then that they leant that they had been dumped at Chemelil area. That that were assisted to Chemelil Police Station where they reported the incident. That he managed to alert his employer and warned her not to send money via Mpesa as his phone had been stolen by the robbers. That the lorry was later tracked and found to be moving from Uganda and heading towards Funyula route and had stopped a few kilometres from Siaya town. That they went to Siaya police station where police officers accompanied them in the search of the lorry and later stumbled upon it parked inside a certain compound and that the registration plates had been changed. That his employer used a spare key to reopen the lorry. That he drove the lorry which now had been given number KBJ 765X to Siaya police station. That he later led police officers to the scene at Rangala area. That he was later called to visit Siaya police station where he positively identified the Appellant herein in an identification parade as he had mastered his face and had seen him quite well when he had assisted him to get out of the boot of the saloon car at the sugarcane plantation at around 7.00 am – 7.15am.
On cross examination, he stated that as soon as he entered the identification parade room of twelve people, he recognized the Appellant and went ahead to touch him.
7. Lucas Aluoch Dala (PW2) testified that the Appellant herein called him on 21/10/2014 and requested him to help keep his lorry for him as he was running away from persons who had given him a loan to purchase the lorry and was worried that they could seize the vehicle if it was left at his (Appellant’s) home. That he later linked him with one Musa to assist in keeping the lorry. That he was later alerted by Musa that police officers had visited his compound in hot pursuit of the stolen lorry and that he relayed the turn of events to the Appellant so that he could shed light on the issue of the lorry. That the Appellant who is a cousin took him in circles and declined to go himself to the police over the lorry until he was compelled to team up with Musa and went to Ukwala police station where they recorded statements over what they knew and that he was treated as a witness against the Appellant.
On cross examination, he stated inter alia; that the Appellant called him on 21/10/2014 and who later avoided him; that the lorry was at Musa’s compound for only 30 minutes before the police turned up and collected it; that he was not present when the police collected the lorry.
8. Moses Odhiambo Omwari (PW3) testified that on 21/10/2014 Lucas Aluoch (PW2) called him and informed him that there was a cousin of theirs who had bought a lorry by way of loan and that the persons who had loaned him now wanted to take back the lorry and hence he wanted a place to keep it. That he enquired from Lucas that he trusted that the same would not pose problems to him to which he assured him. That he gave the alleged owner of the lorry directions to his home in Boro. That he later waited for the lorry and that the Appellant herein turned up and introduced himself as a cousin to Lucas Aluoch (PW2). That he saw the lorry with registration number KBJ 765X. That he showed the Appellant where to park the lorry and who gave him Ksh500/= through his lady companion and drove away in a saloon car with Ugandan registration number plates. That he was later shocked to find police officers had descended his parents’ home. That he tried to contact the Appellant and Lucas Oluoch but their phones remained switched off. That he was forced to go into hiding until relatives assured him to go and record a statement and be made a witness.
On cross examination, he stated inter alia; that he identified the Appellant at Ukwala police station but did not participate in the identification parade; that he had not known the accused before; that he met the Appellant when he brought the lorry to his parents’ compound.
9. Walter Kamigona Ojoni (PW4) stated that he joined the driver of the lorry registration number KCA 160J together with the conductor in Nairobi on 19/10/2014 and that on reaching Kisumu the driver requested him to drive the lorry as he was tired and sleepy. That on reaching Rangala area, a saloon car blocked the lorry and that the occupants in the saloon car came out while firing gunshots. That the three persons forcefully entered the lorry and yanked him off from the lorry and frog matched him to the back seat of the saloon car. That the driver was also flushed out from the lorry and who joined him in the saloon car. That he handed over Ksh80,000/= which was meant for fuel to the robbers. That the robbers also stole their mobile phones and ATM cards. That the robbers later tied them and bundled them into the boot of the saloon car and drove them on a long journey until morning when they reached a sugar cane plantation. That they were dumped there around 7.00 am. That they later managed to untie themselves and later learnt that they were in Muhoroni area. That they were assisted by a good Samaritan to Muhoroni police station where they recorded statements. That he was later called to participate in an identification parade at Siaya Police station where he positively identified the Appellant herein who was the one who terrorized him while armed with a gun and who removed his neck chain and wedding ring.
On cross examination, he stated inter alia; that he saw the faces of the robbers; that the cut on the Appellant had enabled him to master him; that the Appellant was in a parade of ten people of different facial and height appearances.
10. Jeniffer Ayuer Omwari (PW5) testifies that on 21/10/2014 she left the farm at 2.00 pm and while at home she heard the sound of a lorry and later saw a white lorry heading to her home. That the man who brought the lorry left and promised to come back later to collect it. That as soon as Musa (PW3), left three police officers who were armed arrived and harassed her. That the true owner of the lorry also arrived and had the lorry driven away. That the police also drove away her family car. That the man who brought the lorry had the appearance of Owala’s children as they have two lines at the back of their necks. That she was able to identify the Appellant in the dock as the one who brought the lory to her home. That she had earlier attended the funeral of his sister and had known him and that at the time she got married, his mother had not been married.
On cross examination, she stated that she saw the Appellant’s front side as he entered her home and that he could not engage him as he had a female companion who was urging him to leave in haste.
11. Margaret Auma Otieno (PW6) testified that she was in Eldoret on 18/10/2014 when she released her lorry registration KCA 160J FRR Isuzu canter to Nairobi to pick some luggage which was picked on 19/10/2014. That the driver arrived at Awasi at 10.00 pm and she directed them to proceed with the journey. That the following morning at 6.00 am she received a call from a strange number and leant from the driver that they had been car jacked at Rangala Girls area. That she later joined the drive and recorded statements and thereafter commenced the task of tracking the stolen lorry. That they later managed to track it in Siaya County. That she accompanied police officers to a certain home within Alego where she found her lorry which had been fitted with a different registration numbers namely KBJ 765X FRR.
12. No. 235604 CIP David Wanjala (PW7) testified that while attached at Siaya Police station, he was requested to conduct an identification parade involving the Appellant herein. That he managed to get nine parade members and that the Appellant chose to take position between member 7 and 8. That he called the first witness Walter Kamigona Ojoni (PW4) who identified the Appellant by touching him and in which the Appellant indicated that he did not agree with the witness but nevertheless signed the parade form just like the witness. He produced the parade form as exhibit 4. That he had placed the witness at a private place where he could not have seen the suspect before the parade.
On cross examination, he stated inter alia; that the members of the parade composed of inmates and members of public that if the parade rules are not followed it will not be a proper parade.
13. No. 67215 CPL Benson Ndambuki (PW8) testified that he is the DCI Ugunja. He stated that on 20/10/2014 at 9.00 am he was at Ukwala police station when he was alerted by Chemelil police station that a robbery incident had taken place at Rangala area involving motor vehicle KCA 160J Isuzu Canter and that victims of the robbery had been dumped in a sugarcane plantation. That they began patrols within the areas and that on 21/10/2014 at 5.00 pm they received a tip off that the stolen lorry had been parked at a certain home in Alego Usonga. That they rushed there and found a canter bearing registration number KBJ 765X. That the lady of the house claimed that two men and one woman had placed it there. That the owner of the lorry availed a duplicate key which was used and the vehicle was removed. That the alleged registration plates KBS 765X belonged to a Toyota station wagon belonging to Equity Bank Ltd and one Yoroba Solomon. That the Appellant was arrested on 28/5/2016 and an identification parade conducted on 8/6/2016 and 9/6/2016 in which the Appellant was positively identified by the occupants of motor vehicle registration KCA 160J Isuzu canter. That the Appellant was arrested on 28/5/2016 and an identification parade conducted on 8/6/2016 and 9/6/2016 in which the Appellant was positively identified by the occupants of motor vehicle KCA 160 J Isuzu canter. That he produced the two number plates of motor vehicle KBS 765X Toyota station Wagon and KCA 160J Isuzu Canter as exhibits.
On cross examination, he stated inter alia; that he was given the name of Appellant by Mosses Odhiambo Omwari (PW3) and Lucas Aluoch Dala (PW2) who were cousins to the Appellant; that no dusting of finger prints took place because they were dealing with a known person; that the occupants of the lorry (PW1 and PW4) were able to identify the Appellant.
14. No 86640 Pc Douglas Wamalwa (PW9) testified that he was instructed by the investigating officer (PW8) to take photographs of the recovered lory which by then had been fitted with number plates KBS 765X. That he was engaged in the restoration of the correct registration numbers of the lorry. He produced the photographs certificate and restoration report as exhibits
On cross examination, he stated that he did not conduct a search of records of the motor vehicle KCA 160J and KBS 765X.
15. No. 231711 CIP Mark Rop Sirora (PW10) testified that he was requested by the Investigating officer Benson Ndambuki (PW8) to conduct an identification parade for a suspect in custody named Michael Onyango Owala who was then in custody. That he briefed the Appellant about the identification parade exercise and that the Appellant would invite Musa Omondi Onyango to be present during the exercise. That he had eight members of the parade who at least resembled the suspect in height, age, general appearance. That the Appellant chose to stand between members 7 and 8. That the witnesses picked the Appellant by touching him. That the Appellant later claimed that he was not satisfied because CID officers had taken a photograph of him and might have shown the same to the witness. That no such photograph was brought to his attention. He produced the parade form as exhibit.
On cross examination, he stated inter alia; that Moses Omondi Onyango was present during the parade as requested by the Appellant; that the said Moses Omondi Onyango did not sign the parade form as there is no place for such signature. That the parade was conducted above board.
16. The prosecution closed its case. The trial court later ruled that a prima facie case had been established against the Appellant who was thus placed on his defence. He opted to give a sworn testimony and called two witnesses.
17. Michael Onyango Owala (DW1) testified that he had travelled to his parents’ home on 20/10/2014 to celebrate Mashujaa day with them and left for his business place at Busia on 21/10/2014. That he was not at the scene of crime as alleged. That he was arrested on 25/5/2016 after two years by persons who knew him and who had been with him all that time in Ukwala which he used to attend court over it yet those people did not bother to arrest him if at all he was linked to the alleged crime. That the identification parade was not properly conducted as he was not allowed to avail his advocate or relative and that photographs of him had already been shared to the witnesses prior to the parade. That the persons who alleged that he had requested them to keep the lorry for him were his cousins who had a family grudge against him and thus framed him up. That no call data was availed to prove that he had communicated with his cousins. That he was not found in possession of the alleged stolen property.
On cross-examination, he stated inter alia; that he does not know the complainant herein (PW1); that the family dispute had been in existence before he was born; that his cousins were jealous of his progress as he was able to support his family financially.
18. Peter Omondi Odhiambo (DW2) testified that the Appellant called him and later visited him at this place where they stayed together upto 8.00 pm before moving to Siaya where they entertained themselves at a certain hotel up to 2.00 am when they retired back to his place and that they parted ways the following day after lunch.
On cross examination, he stated that he was not aware that the Appellant was involved in a robbery incident. That the Appellant is his friend.
19. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied.
20. Vide submissions dated 14/8/2025, the Appellant submitted that the witnesses who purported to have identified him did not give a description of the robbers in their first report and hence the possibility of mistaken identity during the identification parade. That the two parades were not conducted with scrupulous fairness. It was also submitted that the evidence was full of inconsistencies. That the doctrine of recent possession was not proved against the Appellant beyond reasonable doubt. It was finally submitted that the sentence imposed was excessive and ought to be substituted with the least severe sentence and that the period spent in custody be considered.
21. I have considered the record of appeal and the submissions tendered. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond any reasonable doubt.
22. This being a criminal case, the burden of proof lay upon the Respondent to discharge. In Miller Vs. Minister of Pensions [1947] 2 ALL ER 372, Lord Denning MR . held as follows:
“The degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.’’
23. It is noted that the Appellant was charged with an offence of robbery with violence contrary to Section 295 as read with Section 296 of the Penal Code. The two provide as follows:
S. 295 - Any person who steals anything and at or immediately before or immediately for 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 overcame resistance to it being stolen or retained is guilty of the felony termed robbery.
S. 296(2)- 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 before or after the time of the robbery, he wounds, beats, strikes or uses any personal violence to any person, he shall be sentenced to death.
24. I have noted that the testimony of the two eye witnesses is consistent in terms of what allegedly happened between the night of 19.10.2014 and 20.10.2014. Both PW1 and PW4 stated that they witnessed the alleged incident of robbery with violence. The Appellant has challenged the issue of his identification by the two witnesses and maintained that he has been framed up due to a family dispute between his family and that of PW2, PW3 and PW3. As regards the Appellant’s identification, the key witnesses are PW1 and PW4 and hence the issue now for consideration is whether the visual identification evidence of PW1 and PW4 can be relied upon. In the celebrated case of R vs Turnbull & others (1973) 3 ALL ER 549 the court stated that some of the factors to be considered before determining or whether or not to rely on the visual identification evidence of a single eye witness are as follows: whether the viewer viewed the suspect from a close position, under sufficient lighting and there was nothing which could have impended his proper identification, whether the viewer had ample time to view the offender and that it was not just a fleeting glance, whether the viewer was sober, whether there was any difference between how the viewer described the suspect and the actual appearance of the suspect, whether much time had lapsed between the time the viewer initially saw the suspect and the time the viewer identified the suspect to the police. The court further drew a distinction between recognition evidence and identification of a stranger when the court stated that recognition evidence is more reliable than identification of a stranger and further that even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
The Court of Appeal in Wamunga Vs Republic [1989] KLR 426 held as follows:
‘ ’ It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.’’
Also in Nzaro Vs Republic [1991] KAR 212 the Court of Appeal held that the evidence of identification recognition at night must be absolutely watertight to justify a conviction.
25. Flowing from the foregoing authorities, it emerges that visual identification evidence if not carefully analyzed may in some occasions result to miscarriage of justice and that it is possible that witnesses though honest may sometimes be mistaken on their visual identification. Hence, the issue for determination is whether PW1’s and PW4’s alleged visual identification or the circumstances under which PW1 and PW4 viewed the persons who allegedly robbed them meet the threshold set out in the aforesaid authorities.
26. It is noted that the testimony of PW1 and PW4 relates to what transpired from 19.10.2014 to the 20.10.2014 the period when the alleged incident of robbery with violence took place. Both PW1 and PW4 told the court in their respective testimonies that on 19.10.2014 they left Markiti market in Nairobi aboard a lorry registration number KCA 160J FRR Isuzu canter which was carrying onions belonging to PW4 and that they were traveling to Juba. Both PW1 and PW4 told the court that they travelled and stopped at Awasi where they met the owner of the lorry (PW6) ate supper and embarked on their journey. PW1, PW6 and PW4 stated that even though the said lorry needed to be serviced, PW4 insisted that they would not sleep in Awasi but that the lorry would be serviced at Busia boarder as they waited for clearance at the Boarder. It is the testimony of PW1 and PW4 that they left Awasi at around 10.00p.m and just after they passed Kisumu town, PW1 informed PW4 that he was tired and felling sleepy. Both PW1 and PW4 told the court that PW1 asked PW4 if he knew how to drive a lorry and that PW4 answered in the affirmative. PW1 stated that he had a chance to view the driving licence of PW4 and was satisfied that PW4 could drive the lorry. Both PW1 and PW4 in their respective testimonies told this court that PW1 left PW4 to drive the lorry as PW1 slept on a bed behind the driver’s seat. PW4’s testimony is that when he reached the Rangala area, he realized that a small vehicle that is a Toyota NZE was trailing them. He stated that he crossed the first bump and when he was about to cross the second bump he heard gun shots. He stated that the said small vehicle moved towards the lorry and tried to block it. He stated that in a bid to avoid a collision with the small vehicle, he swerved by moving towards the edge of the road and that is when two men alighted from the small vehicle. PW1 stated that he was awaken by the gun shots and that he also witnessed three men leaving a small car which had blocked their lorry. Both PW1 and PW4 told the court that one man stood on the door next to the driver’s seat while another man stood at the door next to the turn boy’s seat. Both PW1 and PW4 told the court that at that time they thought they were dealing with police officers. Both PW1 and PW4 stated that PW4 was ordered to open the door of the lorry and he complied. They stated that while the engine lorry was still running, the men pulled PW4 off the lorry and went with him towards the vehicle which was in front of the lorry. PW1 stated that at that time the head lamp of the lorry was on and the lights from the head lamp were bright such that one could see 30 metres ahead. It is the testimony of PW1 that the three robbers held PW4 by the neck and the collar and stood with him five metres away from the lorry but in front of the lorry. He stated that at that time he had a good opportunity to see the robbers. He said that he saw the Appellant among the three robbers who were harassing PW4 as the robbers were five metres from the head lamp and that the light from the head lamp was shining on to the said robbers. It is the testimony of PW1 and PW4 that at that time the rear wheel of the lorry was on the bump and since the lorry was carrying a heavy luggage it started moving down the bump thus forcing PW1 to pull the hand break to prevent the lorry from running over PW4 and the robbers as well as the small vehicle. PW1 stated that he pulled the hand brake to avert an accident when the robbers realized that somebody else had been left in the lorry. It is at that point that PW4 was taken to the small car and made to lie on the rear seat while facing down then PW1 was pulled out of the lorry and taken to the small car where he was made lie on top of PW4. It is the testimony of PW1 that since he was the one who was lying on top of PW4, he had a better view of what was happening inside the vehicle. PW4 also stated that since he could understand the Dholuo dialect, he was able to understand better what the robbers were talking about because the robbers were talking in Dholuo language
27. PW1 who lay on top of PW4 stated that the Appellant, who was the tallest of all the robbers, sat on the co-driver’s seat. It is noted that PW1 was more elaborate in his testimony than PW4. He explained what the Appellant was telling him throughout the incident and what the other robbers were doing. PW1 stated that the Appellant asked him if the lorry had a cut out and what amount of fuel was in the lorry. It is the testimony of PW1 and PW4 that the Appellant sat in the co-driver’s seat, and the other robber kept guarding them on the rear seat while the other robb
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1. The appeal arises from the conviction and sentence of Hon. G. Adhiambo dated 26 th July 2016 vide Ukwala SRM’s Court Criminal Case No. 351 of 2016 wherein the Appellant who faced a charge of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code was convicted and sentenced to death.
2. The Appellant herein Michael Onyango Owala was aggrieved by the aforesaid conviction and sentence and duly filed his Petition of Appeal dated 1/8/2017 wherein he raised the following grounds of appeal:
i) That the learned trial magistrate erred in law in convicting the Appellant for the offence of robbery with violence contrary to Section 296(2) of the Penal Code when there was insufficient evidence to support the same.
ii) That the learned trial magistrate failed to give due consideration to the fact that the Appellant’s name was not recorded at Ukwala Police Station OB in relation to the alleged robbery.
iii) That the learned trial magistrate erred in law when she made a finding that the Appellant had dealt mainly on the evidence of his arrest when the Appellant had indeed challenged the entire prosecution’s evidence in cross examination.
iv) That the conduct of the Appellant between the date of the alleged offence and his arrest is that of an innocent man.
v) That the defence of alibi raised by the Appellant was not considered at all by the trial magistrate.
vi) That the conviction of the Appellant was against the weight of the evidence on record.
The Appellant also filed supplementary grounds of appeal dated 14/8/2025 which are as follows:
i) That the trial court erred in law and in fact in not making a finding that the identifying witnesses did not give the description or the name of the Appellant in their first report.
ii) The trail court erred in law and in fact in accepting the evidence of identification of the prosecution witnesses without considering the circumstances under which they came to be made.
iii) That the trial court erred in law and in fact in not weighing the contradictions, discrepancies and inconsistencies that were inconsequential to conviction.
iv) That the trial court erred in law and in fact in not making a finding that lack of properly organized identification parade to PW3 and PW4 was fatal to their identification.
v) That the trial court erred in law and in fact in not making a finding that the doctrine of recent possession was not proved against the Appellant beyond a reasonable standard.
vi) That the trial court erred in law and in fact in admitting the evidence that was not admissible.
vii) That the trial court erred in law and in fact in denying the Appellant his absolute right to a least prescribed sentence pursuant to Article 25(c) and 50 (2) (p) of the Constitution of Kenya 2010.
The Appellant therefore prayed that the appeal be allowed and the conviction quashed and sentence of death be set aside and he be set at liberty unless otherwise lawfully held.
3. This being the first appellate court, its duty is to subject the evidence as a whole to a fresh and exhaustive examination so as to arrive at its own decision and that it must weigh the evidence and draw its own conclusions and findings while making due allowance for the fact that only the trial court had the advantage of hearing and seeing the witnesses. See Okeno vs R [1972] EA 32.
4. The Appellant herein faced a charge of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 26 th October 2014 at Rang’ala Area in Ugunja District within Siaya County jointly with others not before the court while armed with a dangerous weapon namely a firearm, robbed Joseph Makau Mwangangi of a motor vehicle registration number KCA 160J FRR Isuzu Canter while loaded with 700 nets of onions all valued at Kshs4 millions and immediately at the time of such robbery used actual violence to the said Joseph Makau Mwangangi.
5. The Appellant pleaded not guilty to the charge and thus the hearing commenced in earnest on 22/7/2016.
6. Joseph Makau Mwangangi (PW1) testified that he was in Mombasa when he was requested by the registered owner of the lorry registration KCA 160J make FRR Isuzu Canter to drive the same to Sudan to deliver some goods belonging to one of her customers who had sought to supply goods to Sudan. That he started the journey from Nairobi on 19/10/2014 in company of the husband to the owner of the goods and on reaching Kericho, the husband of the owner alighted after giving him Kshs65,000/= for accommodation and service of the lorry as it went to Sudan and back. That on reaching Kisumu, he felt sleepy and that the owner of the goods took over as he went to sleep. That he was later woken up by gunshots and that he saw a saloon car had blocked their way. That two occupants emerged from the saloon car and ordered them to open the lorry door. That the robbers managed to get in and started assaulting the owner of the luggage whom they frog matched him to the saloon car where they were ordered to surrender all phones and STM cards. That the robbers drove them for a long distance before they tied their hands and legs and bundled them in the boot of the car and then drove them to a certain sugar cane plantation where they dumped them there. That he was able to identify the Appellant as he mastered his face quite well by the use of the lorry’s headlights and that they had engaged on a conversation with him regarding the condition of the lorry. That they were abandoned at the sugar plantation around 7.00 am – 7.30 am. That they later managed to untie themselves and sought help from good Samaritans. It was then that they leant that they had been dumped at Chemelil area. That that were assisted to Chemelil Police Station where they reported the incident. That he managed to alert his employer and warned her not to send money via Mpesa as his phone had been stolen by the robbers. That the lorry was later tracked and found to be moving from Uganda and heading towards Funyula route and had stopped a few kilometres from Siaya town. That they went to Siaya police station where police officers accompanied them in the search of the lorry and later stumbled upon it parked inside a certain compound and that the registration plates had been changed. That his employer used a spare key to reopen the lorry. That he drove the lorry which now had been given number KBJ 765X to Siaya police station. That he later led police officers to the scene at Rangala area. That he was later called to visit Siaya police station where he positively identified the Appellant herein in an identification parade as he had mastered his face and had seen him quite well when he had assisted him to get out of the boot of the saloon car at the sugarcane plantation at around 7.00 am – 7.15am.
On cross examination, he stated that as soon as he entered the identification parade room of twelve people, he recognized the Appellant and went ahead to touch him.
7. Lucas Aluoch Dala (PW2) testified that the Appellant herein called him on 21/10/2014 and requested him to help keep his lorry for him as he was running away from persons who had given him a loan to purchase the lorry and was worried that they could seize the vehicle if it was left at his (Appellant’s) home. That he later linked him with one Musa to assist in keeping the lorry. That he was later alerted by Musa that police officers had visited his compound in hot pursuit of the stolen lorry and that he relayed the turn of events to the Appellant so that he could shed light on the issue of the lorry. That the Appellant who is a cousin took him in circles and declined to go himself to the police over the lorry until he was compelled to team up with Musa and went to Ukwala police station where they recorded statements over what they knew and that he was treated as a witness against the Appellant.
On cross examination, he stated inter alia; that the Appellant called him on 21/10/2014 and who later avoided him; that the lorry was at Musa’s compound for only 30 minutes before the police turned up and collected it; that he was not present when the police collected the lorry.
8. Moses Odhiambo Omwari (PW3) testified that on 21/10/2014 Lucas Aluoch (PW2) called him and informed him that there was a cousin of theirs who had bought a lorry by way of loan and that the persons who had loaned him now wanted to take back the lorry and hence he wanted a place to keep it. That he enquired from Lucas that he trusted that the same would not pose problems to him to which he assured him. That he gave the alleged owner of the lorry directions to his home in Boro. That he later waited for the lorry and that the Appellant herein turned up and introduced himself as a cousin to Lucas Aluoch (PW2). That he saw the lorry with registration number KBJ 765X. That he showed the Appellant where to park the lorry and who gave him Ksh500/= through his lady companion and drove away in a saloon car with Ugandan registration number plates. That he was later shocked to find police officers had descended his parents’ home. That he tried to contact the Appellant and Lucas Oluoch but their phones remained switched off. That he was forced to go into hiding until relatives assured him to go and record a statement and be made a witness.
On cross examination, he stated inter alia; that he identified the Appellant at Ukwala police station but did not participate in the identification parade; that he had not known the accused before; that he met the Appellant when he brought the lorry to his parents’ compound.
9. Walter Kamigona Ojoni (PW4) stated that he joined the driver of the lorry registration number KCA 160J together with the conductor in Nairobi on 19/10/2014 and that on reaching Kisumu the driver requested him to drive the lorry as he was tired and sleepy. That on reaching Rangala area, a saloon car blocked the lorry and that the occupants in the saloon car came out while firing gunshots. That the three persons forcefully entered the lorry and yanked him off from the lorry and frog matched him to the back seat of the saloon car. That the driver was also flushed out from the lorry and who joined him in the saloon car. That he handed over Ksh80,000/= which was meant for fuel to the robbers. That the robbers also stole their mobile phones and ATM cards. That the robbers later tied them and bundled them into the boot of the saloon car and drove them on a long journey until morning when they reached a sugar cane plantation. That they were dumped there around 7.00 am. That they later managed to untie themselves and later learnt that they were in Muhoroni area. That they were assisted by a good Samaritan to Muhoroni police station where they recorded statements. That he was later called to participate in an identification parade at Siaya Police station where he positively identified the Appellant herein who was the one who terrorized him while armed with a gun and who removed his neck chain and wedding ring.
On cross examination, he stated inter alia; that he saw the faces of the robbers; that the cut on the Appellant had enabled him to master him; that the Appellant was in a parade of ten people of different facial and height appearances.
10. Jeniffer Ayuer Omwari (PW5) testifies that on 21/10/2014 she left the farm at 2.00 pm and while at home she heard the sound of a lorry and later saw a white lorry heading to her home. That the man who brought the lorry left and promised to come back later to collect it. That as soon as Musa (PW3), left three police officers who were armed arrived and harassed her. That the true owner of the lorry also arrived and had the lorry driven away. That the police also drove away her family car. That the man who brought the lorry had the appearance of Owala’s children as they have two lines at the back of their necks. That she was able to identify the Appellant in the dock as the one who brought the lory to her home. That she had earlier attended the funeral of his sister and had known him and that at the time she got married, his mother had not been married.
On cross examination, she stated that she saw the Appellant’s front side as he entered her home and that he could not engage him as he had a female companion who was urging him to leave in haste.
11. Margaret Auma Otieno (PW6) testified that she was in Eldoret on 18/10/2014 when she released her lorry registration KCA 160J FRR Isuzu canter to Nairobi to pick some luggage which was picked on 19/10/2014. That the driver arrived at Awasi at 10.00 pm and she directed them to proceed with the journey. That the following morning at 6.00 am she received a call from a strange number and leant from the driver that they had been car jacked at Rangala Girls area. That she later joined the drive and recorded statements and thereafter commenced the task of tracking the stolen lorry. That they later managed to track it in Siaya County. That she accompanied police officers to a certain home within Alego where she found her lorry which had been fitted with a different registration numbers namely KBJ 765X FRR.
12. No. 235604 CIP David Wanjala (PW7) testified that while attached at Siaya Police station, he was requested to conduct an identification parade involving the Appellant herein. That he managed to get nine parade members and that the Appellant chose to take position between member 7 and 8. That he called the first witness Walter Kamigona Ojoni (PW4) who identified the Appellant by touching him and in which the Appellant indicated that he did not agree with the witness but nevertheless signed the parade form just like the witness. He produced the parade form as exhibit 4. That he had placed the witness at a private place where he could not have seen the suspect before the parade.
On cross examination, he stated inter alia; that the members of the parade composed of inmates and members of public that if the parade rules are not followed it will not be a proper parade.
13. No. 67215 CPL Benson Ndambuki (PW8) testified that he is the DCI Ugunja. He stated that on 20/10/2014 at 9.00 am he was at Ukwala police station when he was alerted by Chemelil police station that a robbery incident had taken place at Rangala area involving motor vehicle KCA 160J Isuzu Canter and that victims of the robbery had been dumped in a sugarcane plantation. That they began patrols within the areas and that on 21/10/2014 at 5.00 pm they received a tip off that the stolen lorry had been parked at a certain home in Alego Usonga. That they rushed there and found a canter bearing registration number KBJ 765X. That the lady of the house claimed that two men and one woman had placed it there. That the owner of the lorry availed a duplicate key which was used and the vehicle was removed. That the alleged registration plates KBS 765X belonged to a Toyota station wagon belonging to Equity Bank Ltd and one Yoroba Solomon. That the Appellant was arrested on 28/5/2016 and an identification parade conducted on 8/6/2016 and 9/6/2016 in which the Appellant was positively identified by the occupants of motor vehicle registration KCA 160J Isuzu canter. That the Appellant was arrested on 28/5/2016 and an identification parade conducted on 8/6/2016 and 9/6/2016 in which the Appellant was positively identified by the occupants of motor vehicle KCA 160 J Isuzu canter. That he produced the two number plates of motor vehicle KBS 765X Toyota station Wagon and KCA 160J Isuzu Canter as exhibits.
On cross examination, he stated inter alia; that he was given the name of Appellant by Mosses Odhiambo Omwari (PW3) and Lucas Aluoch Dala (PW2) who were cousins to the Appellant; that no dusting of finger prints took place because they were dealing with a known person; that the occupants of the lorry (PW1 and PW4) were able to identify the Appellant.
14. No 86640 Pc Douglas Wamalwa (PW9) testified that he was instructed by the investigating officer (PW8) to take photographs of the recovered lory which by then had been fitted with number plates KBS 765X. That he was engaged in the restoration of the correct registration numbers of the lorry. He produced the photographs certificate and restoration report as exhibits
On cross examination, he stated that he did not conduct a search of records of the motor vehicle KCA 160J and KBS 765X.
15. No. 231711 CIP Mark Rop Sirora (PW10) testified that he was requested by the Investigating officer Benson Ndambuki (PW8) to conduct an identification parade for a suspect in custody named Michael Onyango Owala who was then in custody. That he briefed the Appellant about the identification parade exercise and that the Appellant would invite Musa Omondi Onyango to be present during the exercise. That he had eight members of the parade who at least resembled the suspect in height, age, general appearance. That the Appellant chose to stand between members 7 and 8. That the witnesses picked the Appellant by touching him. That the Appellant later claimed that he was not satisfied because CID officers had taken a photograph of him and might have shown the same to the witness. That no such photograph was brought to his attention. He produced the parade form as exhibit.
On cross examination, he stated inter alia; that Moses Omondi Onyango was present during the parade as requested by the Appellant; that the said Moses Omondi Onyango did not sign the parade form as there is no place for such signature. That the parade was conducted above board.
16. The prosecution closed its case. The trial court later ruled that a prima facie case had been established against the Appellant who was thus placed on his defence. He opted to give a sworn testimony and called two witnesses.
17. Michael Onyango Owala (DW1) testified that he had travelled to his parents’ home on 20/10/2014 to celebrate Mashujaa day with them and left for his business place at Busia on 21/10/2014. That he was not at the scene of crime as alleged. That he was arrested on 25/5/2016 after two years by persons who knew him and who had been with him all that time in Ukwala which he used to attend court over it yet those people did not bother to arrest him if at all he was linked to the alleged crime. That the identification parade was not properly conducted as he was not allowed to avail his advocate or relative and that photographs of him had already been shared to the witnesses prior to the parade. That the persons who alleged that he had requested them to keep the lorry for him were his cousins who had a family grudge against him and thus framed him up. That no call data was availed to prove that he had communicated with his cousins. That he was not found in possession of the alleged stolen property.
On cross-examination, he stated inter alia; that he does not know the complainant herein (PW1); that the family dispute had been in existence before he was born; that his cousins were jealous of his progress as he was able to support his family financially.
18. Peter Omondi Odhiambo (DW2) testified that the Appellant called him and later visited him at this place where they stayed together upto 8.00 pm before moving to Siaya where they entertained themselves at a certain hotel up to 2.00 am when they retired back to his place and that they parted ways the following day after lunch.
On cross examination, he stated that he was not aware that the Appellant was involved in a robbery incident. That the Appellant is his friend.
19. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied.
20. Vide submissions dated 14/8/2025, the Appellant submitted that the witnesses who purported to have identified him did not give a description of the robbers in their first report and hence the possibility of mistaken identity during the identification parade. That the two parades were not conducted with scrupulous fairness. It was also submitted that the evidence was full of inconsistencies. That the doctrine of recent possession was not proved against the Appellant beyond reasonable doubt. It was finally submitted that the sentence imposed was excessive and ought to be substituted with the least severe sentence and that the period spent in custody be considered.
21. I have considered the record of appeal and the submissions tendered. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond any reasonable doubt.
22. This being a criminal case, the burden of proof lay upon the Respondent to discharge. In Miller Vs. Minister of Pensions [1947] 2 ALL ER 372, Lord Denning MR . held as follows:
“The degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.’’
23. It is noted that the Appellant was charged with an offence of robbery with violence contrary to Section 295 as read with Section 296 of the Penal Code. The two provide as follows:
S. 295 - Any person who steals anything and at or immediately before or immediately for 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 overcame resistance to it being stolen or retained is guilty of the felony termed robbery.
S. 296(2)- 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 before or after the time of the robbery, he wounds, beats, strikes or uses any personal violence to any person, he shall be sentenced to death.
24. I have noted that the testimony of the two eye witnesses is consistent in terms of what allegedly happened between the night of 19.10.2014 and 20.10.2014. Both PW1 and PW4 stated that they witnessed the alleged incident of robbery with violence. The Appellant has challenged the issue of his identification by the two witnesses and maintained that he has been framed up due to a family dispute between his family and that of PW2, PW3 and PW3. As regards the Appellant’s identification, the key witnesses are PW1 and PW4 and hence the issue now for consideration is whether the visual identification evidence of PW1 and PW4 can be relied upon. In the celebrated case of R vs Turnbull & others (1973) 3 ALL ER 549 the court stated that some of the factors to be considered before determining or whether or not to rely on the visual identification evidence of a single eye witness are as follows: whether the viewer viewed the suspect from a close position, under sufficient lighting and there was nothing which could have impended his proper identification, whether the viewer had ample time to view the offender and that it was not just a fleeting glance, whether the viewer was sober, whether there was any difference between how the viewer described the suspect and the actual appearance of the suspect, whether much time had lapsed between the time the viewer initially saw the suspect and the time the viewer identified the suspect to the police. The court further drew a distinction between recognition evidence and identification of a stranger when the court stated that recognition evidence is more reliable than identification of a stranger and further that even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
The Court of Appeal in Wamunga Vs Republic [1989] KLR 426 held as follows:
‘ ’ It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.’’
Also in Nzaro Vs Republic [1991] KAR 212 the Court of Appeal held that the evidence of identification recognition at night must be absolutely watertight to justify a conviction.
25. Flowing from the foregoing authorities, it emerges that visual identification evidence if not carefully analyzed may in some occasions result to miscarriage of justice and that it is possible that witnesses though honest may sometimes be mistaken on their visual identification. Hence, the issue for determination is whether PW1’s and PW4’s alleged visual identification or the circumstances under which PW1 and PW4 viewed the persons who allegedly robbed them meet the threshold set out in the aforesaid authorities.
26. It is noted that the testimony of PW1 and PW4 relates to what transpired from 19.10.2014 to the 20.10.2014 the period when the alleged incident of robbery with violence took place. Both PW1 and PW4 told the court in their respective testimonies that on 19.10.2014 they left Markiti market in Nairobi aboard a lorry registration number KCA 160J FRR Isuzu canter which was carrying onions belonging to PW4 and that they were traveling to Juba. Both PW1 and PW4 told the court that they travelled and stopped at Awasi where they met the owner of the lorry (PW6) ate supper and embarked on their journey. PW1, PW6 and PW4 stated that even though the said lorry needed to be serviced, PW4 insisted that they would not sleep in Awasi but that the lorry would be serviced at Busia boarder as they waited for clearance at the Boarder. It is the testimony of PW1 and PW4 that they left Awasi at around 10.00p.m and just after they passed Kisumu town, PW1 informed PW4 that he was tired and felling sleepy. Both PW1 and PW4 told the court that PW1 asked PW4 if he knew how to drive a lorry and that PW4 answered in the affirmative. PW1 stated that he had a chance to view the driving licence of PW4 and was satisfied that PW4 could drive the lorry. Both PW1 and PW4 in their respective testimonies told this court that PW1 left PW4 to drive the lorry as PW1 slept on a bed behind the driver’s seat. PW4’s testimony is that when he reached the Rangala area, he realized that a small vehicle that is a Toyota NZE was trailing them. He stated that he crossed the first bump and when he was about to cross the second bump he heard gun shots. He stated that the said small vehicle moved towards the lorry and tried to block it. He stated that in a bid to avoid a collision with the small vehicle, he swerved by moving towards the edge of the road and that is when two men alighted from the small vehicle. PW1 stated that he was awaken by the gun shots and that he also witnessed three men leaving a small car which had blocked their lorry. Both PW1 and PW4 told the court that one man stood on the door next to the driver’s seat while another man stood at the door next to the turn boy’s seat. Both PW1 and PW4 told the court that at that time they thought they were dealing with police officers. Both PW1 and PW4 stated that PW4 was ordered to open the door of the lorry and he complied. They stated that while the engine lorry was still running, the men pulled PW4 off the lorry and went with him towards the vehicle which was in front of the lorry. PW1 stated that at that time the head lamp of the lorry was on and the lights from the head lamp were bright such that one could see 30 metres ahead. It is the testimony of PW1 that the three robbers held PW4 by the neck and the collar and stood with him five metres away from the lorry but in front of the lorry. He stated that at that time he had a good opportunity to see the robbers. He said that he saw the Appellant among the three robbers who were harassing PW4 as the robbers were five metres from the head lamp and that the light from the head lamp was shining on to the said robbers. It is the testimony of PW1 and PW4 that at that time the rear wheel of the lorry was on the bump and since the lorry was carrying a heavy luggage it started moving down the bump thus forcing PW1 to pull the hand break to prevent the lorry from running over PW4 and the robbers as well as the small vehicle. PW1 stated that he pulled the hand brake to avert an accident when the robbers realized that somebody else had been left in the lorry. It is at that point that PW4 was taken to the small car and made to lie on the rear seat while facing down then PW1 was pulled out of the lorry and taken to the small car where he was made lie on top of PW4. It is the testimony of PW1 that since he was the one who was lying on top of PW4, he had a better view of what was happening inside the vehicle. PW4 also stated that since he could understand the Dholuo dialect, he was able to understand better what the robbers were talking about because the robbers were talking in Dholuo language
27. PW1 who lay on top of PW4 stated that the Appellant, who was the tallest of all the robbers, sat on the co-driver’s seat. It is noted that PW1 was more elaborate in his testimony than PW4. He explained what the Appellant was telling him throughout the incident and what the other robbers were doing. PW1 stated that the Appellant asked him if the lorry had a cut out and what amount of fuel was in the lorry. It is the testimony of PW1 and PW4 that the Appellant sat in the co-driver’s seat, and the other robber kept guarding them on the rear seat while the other robb
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