1. Sylvester Onyango Obonyo, Musyoka Musembei, Peter Kyalo Mbithuka, Peter Mwendwa Kamai and Kasola Nzyula were jointly charged before the Principal Magistrate's Court at Mutomo in Mutomo Criminal Case 399 of 2019.
2. In the first count charged Peter Mwendwa Kamai (hereinafter referred to as the 4th Appellant), Peter Kyalo Mbithuka(hereinafter referred to as the 3rd Appellant), Musyoka Musembei alias Muse(hereinafter referred to as the 2nd Appellant),, Sylvester Onyango Obonyo alias Mzee Moi (hereinafter referred to as the 1st Appellant), and Kasola Nzyula (hereinafter refered to as the 5th Appellant), with robbery with violence contrary to section 296(2) of the Penal Code.
3. The particulars of the first count were that on 10th November 2019 at Nguuni Trading Centre, Ikanga Ward, Mutomo Sub-County, within Kitui County, the five appellants, jointly with others not before the Court, while armed with machetes (pangas) and a gun, robbed Festus Musembi Wambua of cash amounting to Kshs.70,000, Airtel and Safaricom airtime valued at Kshs.8,000, an M-Pesa Huawei phone of unknown value, one Tecno phone valued at Kshs.3,000 and one Oppo A7 valued at Kshs.22,000 and, immediately before or immediately after the time of such robbery, beat the said Festus Musembi Wambua on the back and head using a panga.
4. The second count charged Peter Mwendwa Kamai, Musyoka Musembei alias Muse, Kasola Nzyula and Sylvester Onyango Obonyo alias Mzee Moi with being in possession of a firearm without a licence or permit contrary to section 4(1)(a), as read with section 34(1), of the Firearms Act, Cap. 114 Laws of Kenya. The particulars of the second count were that on 10th November 2019 at Wikiliye in Kitui Town within Kitui County, the four appellants were found in possession of a sub-machine gun namely Patchet, serial number L2A353GA, without a firearm licence or permit, while in a Toyota 110 silver in colour, registration number KAT570K.
5. The third count charged the same four appellants with being in possession of ammunition without a licence or permit contrary to section 4(1)(a), as read with section 34(1), of the Firearms Act, Cap. 114 Laws of Kenya. The particulars of the third count were that on 10th November 2019 at Wikiliye Market in Kitui Town within Kitui County, the four appellants were jointly found in possession of three rounds of 9mm ammunition without a firearm certificate or permit, while in the same Toyota 110 silver in colour, registration number KAT570K.
6. The prosecution called 9 witnesses in support of its case. PW1, Festus Musembi Wambua, testified that on 10th November 2019 he was at his shop at Nguuni Trading Centre. At about 6.45 p.m., he saw a vehicle approaching with its headlights on. The vehicle stopped about 30 metres from the shop and several people alighted. He became suspicious and returned to the shop to collect money from the drawer.As he came out, he saw the persons running towards him. He stated that one was armed with a gun and two with pangas. He heard them say, “let's start with this one,” before they grabbed him by the belt. One of them accused him of lying when he claimed to be a customer. He was struck on the head with a panga and taken into the shop. The assailants ordered everyone to lie down and took PW1 to the cash drawer. They demanded money. He stated that his son urged him to give them what they wanted because they were injuring him. The assailants took the money in the drawer but demanded more. PW1 disclosed that he had money in his phone lines and later remembered that he also had money in his pocket.
6. The witness further stated that one of the assailants removed Kshs.910 from his pocket. Another pushed a gun through the counter and threatened to shoot him if he did not produce more money. PW1 then informed them that there was money in an adjacent store and led them there. He stated that a man carrying a panga and another carrying a gun accompanied him. At the store, PW1 was again struck on the head. He handed the person with the gun the keys and asked him to call Dennis to open the store. When he was left with the man carrying the panga, PW1 grabbed him, took the panga and escaped. He ran to a nearby club, raised an alarm and informed those present of the robbery.
7. Pw1 subsequently reported the matter to police and contacted Safaricom to block his telephone lines. He stated that three phones had been stolen namely a Huawei phone used for his M-Pesa business, a Tecno phone valued at Kshs.3,000 and an Oppo A7 valued at Kshs.22,000. He also reported the loss of Safaricom and Airtel airtime and later realised that a power bank was missing.
8. A day after the incident, PW1 learnt from the media that suspects had been arrested at Wikiliye. He went to Ikanga Police Station and was directed to the Mutomo DCI offices. There, he was shown recovered phones and airtime. He identified the Huawei phone after switching it on and confirming that it responded to his PIN. He also identified the Tecno phone and the accompanying cards.
9. On identification, PW1 was categorical that he could not identify the occupants of the vehicle when he first saw it. It was dark, the vehicle was about 30 metres away and he could neither discern its colour nor its model. He stated that there was no light outside the shop. It was also his evidence that there was electric light in the shop and he had seen four men who entered the shop and that one who had a gun remained outside the counter. He stated that one man wore a mask, another wore black clothing and the others wore heavy jackets. He described the man who grabbed him as tall and the person with the gun as short but could not give further physical descriptions.
10. In the proceedings of 27th January 2021, PW1 identified the 3rd appellant as the person who pulled the drawer and made him lie down and beat him with a panga. He identified the 5th appellant as the person who held a bag and came close enough for him to see and hear him. PW1 maintained that he could recognise the voices of the assailants. PW1 acknowledged that he had not given the police a description of the persons who attacked him or a description of their voices and that no voice identification parade was conducted. He also confirmed that the appellants were not shown to him in an identification parade and that he subsequently saw them in court.
11. PW1 also confirmed that he had not been present when the appellants were arrested and was merely informed at the police station that suspects had been arrested with his property. He maintained that the panga used during the robbery had distinguishing characteristics, although he acknowledged that pangas generally resemble one another. He stated that he was injured during the robbery and had been treated at Ikanga Hospital on the night of the robbery.
12. PW2, Raphael Kimutai, a police officer involved in the operation leading to the interception of motor vehicle KAT 570K on 10th November 2019, testified that information had been received concerning a vehicle suspected to have been used in the robbery. The officers were instructed to intercept it. The vehicle was subsequently traced and stopped. He stated that two passengers escaped from the vehicle and three and the driver remained and were arrested. He identified Musyoka Musembi alias Musee, the 2nd Appellant as the driver, Sylvester Onyango Obonyo, the 1st Appellant, Peter Kyalo Mbithuka the 3rd Appellant and Peter Mwendwa Kamai, the 4th Appellant as the passengers. He stated that he recovered a gun and three rounds of ammunition in the front of the car and 2 pangas were in the boot. He stated he also recovered some phones in the vehicle.
13. PW3, Dennis Musembi Wandia, and PW5 Benard Musembi the complainant’s sons aged 16 and 15 years respectively testified that on 10th November 2019 at about 7.00 p.m. two men who were armed with a gun and panga robbed his father’s shop at Nguuni of money, a Huawei M-Pesa phone, a Tecno phone and Airtel credit cards. They stated they did not identify the two men since it was dark.
14. PW4, Ruth Mutinda, a clinical officer at Mutomo Level 4 Hospital, examined PW1 on 10th November 2019 and issued found he had injuries to the head and back. She produced treatment notes dated 10th November 2019 as PEXH. 10 and P3 form as PEXH. 11 showing that complainant suffered harm.
15. PW6, Johnstone Musyoki Mwongela, examined a firearm, magazine and three rounds of ammunition submitted to him on 13th November 2019. The firearm was marked MFI 12 and the ammunition MFI 13(a)–(c). The exhibits were accompanied by a police exhibit memo dated 12th November 2019. He identified the firearm as an L2A3 Stalin Patchett sub-machine gun manufactured in the United Kingdom and chambered for 9mm ammunition. He formed the opinion that the firearm was a firearm within the meaning of the Firearms Act and that the three rounds were ammunition. He test-fired the firearm and obtained six cartridge cases. He compared the test-fired cases with cartridge cases previously submitted to the laboratory using the Integrated Ballistics Identification System and a comparison microscope. PW6 concluded that the firearm had been involved in previous criminal activities and identified several ballistic associations recorded in the laboratory database. He prepared a report dated 14.11.2019 PEXH. 22 and 4 test fired cartilages as PEXH. 13 a), b) c) and d).
16. PW7, PC Mutinda Kitangata, testified that on 10th November 2019 he searched the house of the Peter Mwendwa Kamai, the 4th Appellant and recovered some liquid, a grey cloth, blue cloth and a red cloth which were submitted to the government chemists for analysis. He explained that he did not have an inventory signed by the 4th Apellant to confirm the recovery.
17. PW8, Dennis Owino Onyango, a Government Chemist, testified that on 20th November 2019 he received a bottle containing a yellowish liquid together with grey, red and blue pieces of cloth for examination. He analysed the liquid using ultraviolet visual spectroscopy. His conclusion was that the liquid was gun oil and that the three pieces of cloth contained traces of gun oil. PW8 prepared a report dated 27th November 2019, signed it and placed it under the Government seal. The report was produced as PExh. 2(a).
18. PW9 Johnstone Musyoki Mwongela, a police officer attached to DCI Mutomo, testified that on 10th November 2019 at about 7.00 p.m., he received information concerning the robbery at Nguuni Trading Centre and proceeded to the scene. Telephone tracking was undertaken and the officers were subsequently informed that a vehicle had been intercepted at Wikiliye, four persons arrested and a firearm recovered. He proceeded to Kitui Police Station, where he found the suspects in custody. He had not participated in the tracking, interception or arrest. The witness thereafter joined the team that searched the 4th appellant’s house at Mbilini. The search was conducted at night and yielded a bottle containing liquid, a grey piece of cloth, a blue cloth bag and a red cloth, all recovered from underneath the bed. An inventory dated 10th November 2019 was prepared and the 4th appellant affixed his thumbprint thereto. The recovered items were subsequently escorted to the Government Chemist, where the liquid was identified as gun oil and traces of gun oil were detected on the cloth items. The firearm had been recovered from the vehicle, although he was not the officer who made the recovery. Mobile phones and airtime were also recovered from the vehicle, with discrepancies arising in the recording of the telephone serial numbers. The Oppo phone was not recovered. No identification parade was conducted because the assailants had been masked and the incident occurred at night.
19. He acknowledged that the officers who arrested the Appellants and conducted the telephone tracking were not called as witnesses.
20. The 1st appellant gave sworn evidence and denied the offence. He stated that on 10th November 2019 he had been drinking alcohol at a bar at Mwembe Shopping Centre and was arrested while on his way home. He relied on PW1’s evidence that he was unable to identify the persons who attacked him and could not give their appearance or description. He further pointed out that PW1 confirmed that no identification parade was conducted. The 1st appellant denied that any of the stolen property was recovered from him and challenged the evidence concerning the alleged recovery from his house. He contended that the investigating officer was unable to give a clear account of what had allegedly been recovered from him and his co-appellants.
21. The 2nd appellant likewise gave sworn evidence and denied the offence. He stated that on 14th November 2019 he was at the house of his girlfriend, Grace, in Kitui when a police officer, Muchiri, found him there and demanded to know what he was doing. An argument followed, after which Muchiri called another officer, Salim, who handcuffed him and escorted him to Kitui Police Station. He stated that the police subsequently searched his house and recovered an Itel phone and two Tecno phones which belonged to his children. He denied any connection with the robbery and stated that he was thereafter charged with an offence of which he knew nothing.
22. The 3rd appellant gave sworn evidence and denied the offence. He stated that on 10th November 2019 at about 7.00 p.m., he was waiting for transport home when he was offered a lift to Wikililye Town. The vehicle was stopped by a police officer and the driver alighted to speak to the officer. Two of the other three passengers then escaped. The police officer ordered the 3rd appellant and the remaining passenger to alight. Upon searching the vehicle, the officers recovered a sack from the seat where the two persons who had escaped had been sitting.
23. The 3rd appellant stated that he was arrested and his house subsequently searched, but nothing was recovered. He relied on PW1’s evidence that he had not identified the persons who attacked him. He denied any involvement in the robbery and stated that he was charged with an offence he did not commit.
24. The 4th appellant gave sworn evidence and denied the offence. He stated that on 9th November 2019 he purchased motor vehicle KAT 570K in Nairobi and drove it to his home in Kitui, intending to operate it as a taxi. On 10th November 2019, he was hired by a man and a woman, whom he described as appearing unwell, to take them to Kisasi for Kshs.1,500. After dropping them off, he was returning to Kitui when he picked up the 1st, 3rd and 5th appellants together with two other men. He stated that the vehicle was stopped at Wikiliye by a police officer. When he alighted to speak to the officer, the two other men escaped. He was thereafter arrested and his Tecno phone confiscated. He denied participating in the robbery or having any knowledge of the offence.
25. The 5th appellant gave an unsworn defence and denied the offence. He stated that he was travelling in the 4th appellant’s motor vehicle when he was arrested on 10th November 2019. He denied that any property stolen from the complainant was recovered from him and maintained that he had not participated in the robbery. He relied on PW1’s evidence that he was unable to recognise the persons who had robbed him.
26. On 15th April 2025, the trial court convicted all five appellants were found guilty and convicted. On 19th May 2025, they were all sentenced to death on the first count of robbery with violence contrary to section 296(2) of the Penal Code. On the second and third counts, the 1st, 2nd, 4th and 5th appellants were each sentenced to ten years’ imprisonment for being in possession of a firearm without a licence contrary to section 4A(1)(a) and section 2(d), as read with section 34, of the Firearms Act, Cap. 114, and being in possession of ammunition without a licence contrary to the same provisions of the Act. The sentences were ordered to run concurrently.
27. Aggrieved by their convictions and sentences, the appellants lodged separate, undated grounds of appeal.
28. The 1st Appellant, Sylvester Onyango Obonyo, challenged both conviction and sentence on the grounds that the prosecution evidence did not corroborate the case against him; that the trial court failed to properly evaluate the evidence and the charge sheet; that the conviction was based on contradictions and inconsistencies; that the firearm produced in evidence was not sufficiently linked to the offence and the alleged recovery was not supported by an inventory; that the charge sheet was defective; that the ingredients of robbery with violence were not proved; and that his statement was not properly considered. He further contended that the trial court failed to properly evaluate the evidence relating to the firearm and that the judgment was unsafe and resulted in a miscarriage of justice.
29. The 2nd Appellant, Musyoka Musembei, challenged the conviction and sentence on the grounds that the charge sheet was defective; that the prosecution evidence was not properly corroborated; that the trial court failed to address two different OB entries which, according to him, did not disclose which arrest and apprehension related to him; that the evidence was insufficient, uncorroborated and incredible; that the alleged recovery of the firearm was not supported by an inventory or proper documentation; that no identification parade was conducted; and that the sentence imposed was not provided for in law.
30. The 3rd Appellant, Peter Kyalo Mbithuka, challenged the conviction and sentence on the grounds that the prosecution evidence contained unresolved contradictions; that the charge was not proved beyond reasonable doubt; that the verdict was unsafe and amounted to a miscarriage of justice; that the firearm produced in evidence was not properly connected to him or the offence, particularly in the absence of an inventory or memorandum of the alleged recovery and signatures of the relevant parties; that no identification parade was conducted; that the trial court failed to consider two OB entries relating to the apprehension of the accused persons; that the charge sheet was defective; and that his sworn defence was not properly considered.
31. The 4th Appellant, Peter Mwendwa Kamai, challenged the conviction and sentence on the grounds that the trial court failed to consider and analyse the prosecution evidence; that the ingredients of robbery with violence were not proved beyond reasonable doubt; that there was no inventory and no identification parade; that the charge sheet was defective; and that his defence was wrongly rejected.
32. The 5th Appellant, Kasola Nzyula, lodged his petition of appeal dated 13th May 2026. He challenged both conviction and sentence on the grounds that no identification parade was conducted to identify him as one of the perpetrators; that the essential ingredients of robbery with violence were not proved; that the conviction was founded on inconsistencies, discrepancies and gaps in the prosecution evidence; that the trial court failed to properly analyse the evidence and instead relied on evidence which he alleges was manufactured, manipulated or framed to implicate him; and that the charge sheet was defective and incurably so under section 214 of the Criminal Procedure Code. He further contended that the sentence was manifestly harsh and excessive in the circumstances.
33. I have considered the undated written submissions filed by the respective appellants and the respondent’s submissions dated 25th August 2026. The appellants’ respective positions may be summarised as follows.
34. The 1st Appellant, Sylvester Onyango Obonyo, submits that the prosecution evidence was inconsistent and insufficient to sustain the conviction. He challenges the identification evidence, the circumstances of his arrest, the alleged recovery of stolen property and the firearm, and the manner in which the trial court evaluated the evidence and his defence. He contends that the ingredients of robbery with violence were not proved beyond reasonable doubt and urges that the conviction be quashed and the sentence set aside.
35. The 2nd Appellant, Musyoka Musembei alias Muse, challenges the circumstances of his arrest and contends that the evidence did not place him at the scene of the robbery or establish his possession of the stolen property. He points to the inconsistencies concerning his arrest, the absence of an identification parade and the complainant’s inability to identify the assailants at the scene. He further submits that his defence was not properly considered.
36. The 3rd Appellant, Peter Kyalo Mbithuka, in his submissions dated 31st August 2026, challenges the identification evidence and the circumstances of his arrest. He submits that the prosecution evidence did not sufficiently connect him with the robbery or the alleged recovered property, and relies on the absence of an identification parade, contradictions in the prosecution case and the failure to properly consider his defence.
37. The 4th Appellant, Peter Mwendwa Kamai, challenges the sufficiency and reliability of the prosecution evidence, particularly the identification evidence, the alleged recovery from his house and the absence of an identification parade. He contends that the ingredients of robbery with violence were not proved beyond reasonable doubt and that his defence was improperly rejected.
38. The 5th Appellant, Kasola Nzyula, challenges the identification evidence, the alleged inconsistencies and gaps in the prosecution case, and the validity of the charge sheet. He submits that his participation in the robbery was not proved beyond reasonable doubt and that the trial court failed to properly evaluate his defence.
39. In response, the respondent submits that the evidence established the robbery, the violence inflicted upon the complainant, the participation of several offenders and the recovery of stolen property and weapons. It contends that the evidence, considered as a whole, sufficiently connected the appellants to the offences and that the absence of an identification parade was not fatal to the prosecution case. The respondent consequently urges the Court to uphold the convictions and sentences.
40. From the grounds of appeal, the evidence on record and the submissions of the parties, the following issues arise for determination:
1) Whether the prosecution proved beyond reasonable doubt that the offence of robbery with violence contrary to section 296(2) of the Penal Code was committed.
2) Whether the appellants were positively and reliably identified as the persons who committed the robbery.
3) Whether the recovery of the complainant’s property established the appellants’ participation in the robbery, including whether the doctrine of recent possession and common intention was properly applicable.
4) Whether the evidence relating to the recovery and possession of the firearm and ammunition proved the offences charged under the Firearms Act against the appellants concerned.
5) Whether there were defects in the charge sheet occasioned prejudice to the appellants or rendered the convictions unsafe.
6) Whether the trial court properly considered and evaluated the appellants’ respective defences.
7) Whether the convictions on the respective counts were supported by the evidence and the sentences imposed were lawful.
47. This being a first appeal, I am required to reconsider and re-evaluate the evidence that was before the trial court and draw my own conclusions, while bearing in mind that I neither saw nor heard the witnesses. That duty was restated in Okeno v Republic [1972] EA 32, a principle relied upon by the appellants. I have therefore considered the evidence afresh, together with the grounds of appeal and the submissions made before this Court.
48. The first issue for determination is whether the prosecution proved beyond reasonable doubt that the offence of robbery with violence contrary to section 296(2) of the Penal Code was committed. The prosecution was required to establish the essential ingredients of the offence, namely, that there was stealing; that the stealing was accompanied, immediately before or immediately after, by actual violence or a threat of actual violence; and that at least one of the circumstances prescribed under section 296(2) was present. In Moneni Ngumbao Mangi v Republic, Criminal Appeal No. 141 of 2005 (Mombasa), the Court of Appeal explained the relationship between stealing and the accompanying violence or threat. In Oluoch v Republic [1985] KLR, the Court identified the three circumstances contemplated under section 296(2), namely being armed with a dangerous or offensive weapon, being in the company of one or more persons, or wounding, beating, striking or using other personal violence, and held that proof of any one of them is sufficient.
49. On whether there was stealing, PW1 testified that on 10th November 2019 at about 6.45 p.m., several men entered his shop at Nguuni Trading Centre and demanded money. They took money from the cash drawer and Kshs.910 from his pocket and compelled him to disclose the existence of further money. He also reported the loss of his Huawei M-Pesa phone, Tecno phone, Oppo A7 and airtime. PW3 and PW5, who were present, confirmed that armed men entered the shop and took property. I am satisfied that the prosecution proved the theft.
50. The evidence of violence was equally clear. PW1 stated that he was struck on the head with a panga as he was taken into the shop and was struck again when he led the assailants to the adjacent store. He was also threatened with a firearm. PW4 examined him on 10th November 2019 and found that he had sustained injuries to the head and back. She produced the treatment notes dated 10th November 2019 as PExh. 10 and the P3 Form as PExh. 11, both documenting the injuries and confirming that the complainant had suffered harm.
51. The circumstances contemplated under section 296(2) were also established. The assailants were armed with a firearm and pangas and acted together. The use of a panga to strike PW1 and the threat to shoot him constituted actual and threatened violence, while the presence of several armed assailants brought the robbery within section 296(2). I therefore find that the prosecution proved beyond reasonable doubt that the incident at Nguuni Trading Centre was a robbery with violence contrary to section 296(2) of the Penal Code.
52. The second issue for determination is whether any of the appellants was identified as one of the persons who committed the robbery. PW1 testified that when the robbery vehicle approached the shop, its occupants alighted and came towards him, but he could not identify them because it was dark and the vehicle had stopped about 30 metres away. Although there was electric light inside the shop, one of the assailants was masked, while the others wore jackets. The description given was only that one person was tall and another short.
53. PW1 did also not give the police a description of any of the assailants in his statements made after the incident. PW3 and PW5, who were present during the robbery, confirmed that they were not able to identify any of the assailants. The prosecution therefore had no evidence of identification made at the scene or shortly thereafter.
54. PW1 subsequently purported to identify the 3rd and 5th appellants in court on 27th January 2021. He pointed out the 3rd Appellant as the person who pulled the drawer, made him lie down and beat him with a panga, and the 5th Appellant as the person who held a bag and came close to him. That was not however not a first identification as PW1 had already seen the appellants in court when he first testified on 12th February 2020. The subsequent pointing out of persons whom he had already seen in court could not constitute independent identification evidence of probative value.
55. The claim by PW1 that he recognised the 3rd and 5th appellants by their voices does not materially improve the position since he had not given the police any description of their voices and no voice identification procedure was undertaken. More importantly, there was no evidence that he recognised their voices during the robbery and in any case, it is practically impossible to identify voices of unknown persons.
56. The principles stated in Wamunga v Republic [1989] KLR 424, Maitanyi v Republic [1986] KLR 198 and Kiarie v Republic [1984] KLR 739 require the Court to examine identification evidence with particular caution where the circumstances of observation were difficult. R v Turnbull [1977] QB 224 similarly emphasises the need to consider the conditions under which the witness observed the alleged offender. Here, those circumstances included darkness outside the shop, the distance from the vehicle, the presence of several assailants, the masking of at least one of them and the absence of any description given at the earliest opportunity.
57. The respondent's submission that an identification parade was not necessary does not resolve the difficulty in the prosecution case. The issue is not the absence of an identification parade; it is that PW1 did not identify the robbers. An identification parade could only have assisted if there had been a witness with a reliable recollection capable of identifying a suspect from among persons of similar appearance. The subsequent in-court pointing out, after PW1 had already seen the appellants in court, could not supply that missing evidence.
58. I therefore find that the prosecution did not establish by reliable identification evidence that any of the appellants was among the persons who committed the robbery.
59. The third issue is whether the recovery of the complainant’s property established the appellants’ participation in the robbery and whether the
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2. In the first count charged Peter Mwendwa Kamai (hereinafter referred to as the 4th Appellant), Peter Kyalo Mbithuka(hereinafter referred to as the 3rd Appellant), Musyoka Musembei alias Muse(hereinafter referred to as the 2nd Appellant),, Sylvester Onyango Obonyo alias Mzee Moi (hereinafter referred to as the 1st Appellant), and Kasola Nzyula (hereinafter refered to as the 5th Appellant), with robbery with violence contrary to section 296(2) of the Penal Code.
3. The particulars of the first count were that on 10th November 2019 at Nguuni Trading Centre, Ikanga Ward, Mutomo Sub-County, within Kitui County, the five appellants, jointly with others not before the Court, while armed with machetes (pangas) and a gun, robbed Festus Musembi Wambua of cash amounting to Kshs.70,000, Airtel and Safaricom airtime valued at Kshs.8,000, an M-Pesa Huawei phone of unknown value, one Tecno phone valued at Kshs.3,000 and one Oppo A7 valued at Kshs.22,000 and, immediately before or immediately after the time of such robbery, beat the said Festus Musembi Wambua on the back and head using a panga.
4. The second count charged Peter Mwendwa Kamai, Musyoka Musembei alias Muse, Kasola Nzyula and Sylvester Onyango Obonyo alias Mzee Moi with being in possession of a firearm without a licence or permit contrary to section 4(1)(a), as read with section 34(1), of the Firearms Act, Cap. 114 Laws of Kenya. The particulars of the second count were that on 10th November 2019 at Wikiliye in Kitui Town within Kitui County, the four appellants were found in possession of a sub-machine gun namely Patchet, serial number L2A353GA, without a firearm licence or permit, while in a Toyota 110 silver in colour, registration number KAT570K.
5. The third count charged the same four appellants with being in possession of ammunition without a licence or permit contrary to section 4(1)(a), as read with section 34(1), of the Firearms Act, Cap. 114 Laws of Kenya. The particulars of the third count were that on 10th November 2019 at Wikiliye Market in Kitui Town within Kitui County, the four appellants were jointly found in possession of three rounds of 9mm ammunition without a firearm certificate or permit, while in the same Toyota 110 silver in colour, registration number KAT570K.
6. The prosecution called 9 witnesses in support of its case. PW1, Festus Musembi Wambua, testified that on 10th November 2019 he was at his shop at Nguuni Trading Centre. At about 6.45 p.m., he saw a vehicle approaching with its headlights on. The vehicle stopped about 30 metres from the shop and several people alighted. He became suspicious and returned to the shop to collect money from the drawer.As he came out, he saw the persons running towards him. He stated that one was armed with a gun and two with pangas. He heard them say, “let's start with this one,” before they grabbed him by the belt. One of them accused him of lying when he claimed to be a customer. He was struck on the head with a panga and taken into the shop. The assailants ordered everyone to lie down and took PW1 to the cash drawer. They demanded money. He stated that his son urged him to give them what they wanted because they were injuring him. The assailants took the money in the drawer but demanded more. PW1 disclosed that he had money in his phone lines and later remembered that he also had money in his pocket.
6. The witness further stated that one of the assailants removed Kshs.910 from his pocket. Another pushed a gun through the counter and threatened to shoot him if he did not produce more money. PW1 then informed them that there was money in an adjacent store and led them there. He stated that a man carrying a panga and another carrying a gun accompanied him. At the store, PW1 was again struck on the head. He handed the person with the gun the keys and asked him to call Dennis to open the store. When he was left with the man carrying the panga, PW1 grabbed him, took the panga and escaped. He ran to a nearby club, raised an alarm and informed those present of the robbery.
7. Pw1 subsequently reported the matter to police and contacted Safaricom to block his telephone lines. He stated that three phones had been stolen namely a Huawei phone used for his M-Pesa business, a Tecno phone valued at Kshs.3,000 and an Oppo A7 valued at Kshs.22,000. He also reported the loss of Safaricom and Airtel airtime and later realised that a power bank was missing.
8. A day after the incident, PW1 learnt from the media that suspects had been arrested at Wikiliye. He went to Ikanga Police Station and was directed to the Mutomo DCI offices. There, he was shown recovered phones and airtime. He identified the Huawei phone after switching it on and confirming that it responded to his PIN. He also identified the Tecno phone and the accompanying cards.
9. On identification, PW1 was categorical that he could not identify the occupants of the vehicle when he first saw it. It was dark, the vehicle was about 30 metres away and he could neither discern its colour nor its model. He stated that there was no light outside the shop. It was also his evidence that there was electric light in the shop and he had seen four men who entered the shop and that one who had a gun remained outside the counter. He stated that one man wore a mask, another wore black clothing and the others wore heavy jackets. He described the man who grabbed him as tall and the person with the gun as short but could not give further physical descriptions.
10. In the proceedings of 27th January 2021, PW1 identified the 3rd appellant as the person who pulled the drawer and made him lie down and beat him with a panga. He identified the 5th appellant as the person who held a bag and came close enough for him to see and hear him. PW1 maintained that he could recognise the voices of the assailants. PW1 acknowledged that he had not given the police a description of the persons who attacked him or a description of their voices and that no voice identification parade was conducted. He also confirmed that the appellants were not shown to him in an identification parade and that he subsequently saw them in court.
11. PW1 also confirmed that he had not been present when the appellants were arrested and was merely informed at the police station that suspects had been arrested with his property. He maintained that the panga used during the robbery had distinguishing characteristics, although he acknowledged that pangas generally resemble one another. He stated that he was injured during the robbery and had been treated at Ikanga Hospital on the night of the robbery.
12. PW2, Raphael Kimutai, a police officer involved in the operation leading to the interception of motor vehicle KAT 570K on 10th November 2019, testified that information had been received concerning a vehicle suspected to have been used in the robbery. The officers were instructed to intercept it. The vehicle was subsequently traced and stopped. He stated that two passengers escaped from the vehicle and three and the driver remained and were arrested. He identified Musyoka Musembi alias Musee, the 2nd Appellant as the driver, Sylvester Onyango Obonyo, the 1st Appellant, Peter Kyalo Mbithuka the 3rd Appellant and Peter Mwendwa Kamai, the 4th Appellant as the passengers. He stated that he recovered a gun and three rounds of ammunition in the front of the car and 2 pangas were in the boot. He stated he also recovered some phones in the vehicle.
13. PW3, Dennis Musembi Wandia, and PW5 Benard Musembi the complainant’s sons aged 16 and 15 years respectively testified that on 10th November 2019 at about 7.00 p.m. two men who were armed with a gun and panga robbed his father’s shop at Nguuni of money, a Huawei M-Pesa phone, a Tecno phone and Airtel credit cards. They stated they did not identify the two men since it was dark.
14. PW4, Ruth Mutinda, a clinical officer at Mutomo Level 4 Hospital, examined PW1 on 10th November 2019 and issued found he had injuries to the head and back. She produced treatment notes dated 10th November 2019 as PEXH. 10 and P3 form as PEXH. 11 showing that complainant suffered harm.
15. PW6, Johnstone Musyoki Mwongela, examined a firearm, magazine and three rounds of ammunition submitted to him on 13th November 2019. The firearm was marked MFI 12 and the ammunition MFI 13(a)–(c). The exhibits were accompanied by a police exhibit memo dated 12th November 2019. He identified the firearm as an L2A3 Stalin Patchett sub-machine gun manufactured in the United Kingdom and chambered for 9mm ammunition. He formed the opinion that the firearm was a firearm within the meaning of the Firearms Act and that the three rounds were ammunition. He test-fired the firearm and obtained six cartridge cases. He compared the test-fired cases with cartridge cases previously submitted to the laboratory using the Integrated Ballistics Identification System and a comparison microscope. PW6 concluded that the firearm had been involved in previous criminal activities and identified several ballistic associations recorded in the laboratory database. He prepared a report dated 14.11.2019 PEXH. 22 and 4 test fired cartilages as PEXH. 13 a), b) c) and d).
16. PW7, PC Mutinda Kitangata, testified that on 10th November 2019 he searched the house of the Peter Mwendwa Kamai, the 4th Appellant and recovered some liquid, a grey cloth, blue cloth and a red cloth which were submitted to the government chemists for analysis. He explained that he did not have an inventory signed by the 4th Apellant to confirm the recovery.
17. PW8, Dennis Owino Onyango, a Government Chemist, testified that on 20th November 2019 he received a bottle containing a yellowish liquid together with grey, red and blue pieces of cloth for examination. He analysed the liquid using ultraviolet visual spectroscopy. His conclusion was that the liquid was gun oil and that the three pieces of cloth contained traces of gun oil. PW8 prepared a report dated 27th November 2019, signed it and placed it under the Government seal. The report was produced as PExh. 2(a).
18. PW9 Johnstone Musyoki Mwongela, a police officer attached to DCI Mutomo, testified that on 10th November 2019 at about 7.00 p.m., he received information concerning the robbery at Nguuni Trading Centre and proceeded to the scene. Telephone tracking was undertaken and the officers were subsequently informed that a vehicle had been intercepted at Wikiliye, four persons arrested and a firearm recovered. He proceeded to Kitui Police Station, where he found the suspects in custody. He had not participated in the tracking, interception or arrest. The witness thereafter joined the team that searched the 4th appellant’s house at Mbilini. The search was conducted at night and yielded a bottle containing liquid, a grey piece of cloth, a blue cloth bag and a red cloth, all recovered from underneath the bed. An inventory dated 10th November 2019 was prepared and the 4th appellant affixed his thumbprint thereto. The recovered items were subsequently escorted to the Government Chemist, where the liquid was identified as gun oil and traces of gun oil were detected on the cloth items. The firearm had been recovered from the vehicle, although he was not the officer who made the recovery. Mobile phones and airtime were also recovered from the vehicle, with discrepancies arising in the recording of the telephone serial numbers. The Oppo phone was not recovered. No identification parade was conducted because the assailants had been masked and the incident occurred at night.
19. He acknowledged that the officers who arrested the Appellants and conducted the telephone tracking were not called as witnesses.
20. The 1st appellant gave sworn evidence and denied the offence. He stated that on 10th November 2019 he had been drinking alcohol at a bar at Mwembe Shopping Centre and was arrested while on his way home. He relied on PW1’s evidence that he was unable to identify the persons who attacked him and could not give their appearance or description. He further pointed out that PW1 confirmed that no identification parade was conducted. The 1st appellant denied that any of the stolen property was recovered from him and challenged the evidence concerning the alleged recovery from his house. He contended that the investigating officer was unable to give a clear account of what had allegedly been recovered from him and his co-appellants.
21. The 2nd appellant likewise gave sworn evidence and denied the offence. He stated that on 14th November 2019 he was at the house of his girlfriend, Grace, in Kitui when a police officer, Muchiri, found him there and demanded to know what he was doing. An argument followed, after which Muchiri called another officer, Salim, who handcuffed him and escorted him to Kitui Police Station. He stated that the police subsequently searched his house and recovered an Itel phone and two Tecno phones which belonged to his children. He denied any connection with the robbery and stated that he was thereafter charged with an offence of which he knew nothing.
22. The 3rd appellant gave sworn evidence and denied the offence. He stated that on 10th November 2019 at about 7.00 p.m., he was waiting for transport home when he was offered a lift to Wikililye Town. The vehicle was stopped by a police officer and the driver alighted to speak to the officer. Two of the other three passengers then escaped. The police officer ordered the 3rd appellant and the remaining passenger to alight. Upon searching the vehicle, the officers recovered a sack from the seat where the two persons who had escaped had been sitting.
23. The 3rd appellant stated that he was arrested and his house subsequently searched, but nothing was recovered. He relied on PW1’s evidence that he had not identified the persons who attacked him. He denied any involvement in the robbery and stated that he was charged with an offence he did not commit.
24. The 4th appellant gave sworn evidence and denied the offence. He stated that on 9th November 2019 he purchased motor vehicle KAT 570K in Nairobi and drove it to his home in Kitui, intending to operate it as a taxi. On 10th November 2019, he was hired by a man and a woman, whom he described as appearing unwell, to take them to Kisasi for Kshs.1,500. After dropping them off, he was returning to Kitui when he picked up the 1st, 3rd and 5th appellants together with two other men. He stated that the vehicle was stopped at Wikiliye by a police officer. When he alighted to speak to the officer, the two other men escaped. He was thereafter arrested and his Tecno phone confiscated. He denied participating in the robbery or having any knowledge of the offence.
25. The 5th appellant gave an unsworn defence and denied the offence. He stated that he was travelling in the 4th appellant’s motor vehicle when he was arrested on 10th November 2019. He denied that any property stolen from the complainant was recovered from him and maintained that he had not participated in the robbery. He relied on PW1’s evidence that he was unable to recognise the persons who had robbed him.
26. On 15th April 2025, the trial court convicted all five appellants were found guilty and convicted. On 19th May 2025, they were all sentenced to death on the first count of robbery with violence contrary to section 296(2) of the Penal Code. On the second and third counts, the 1st, 2nd, 4th and 5th appellants were each sentenced to ten years’ imprisonment for being in possession of a firearm without a licence contrary to section 4A(1)(a) and section 2(d), as read with section 34, of the Firearms Act, Cap. 114, and being in possession of ammunition without a licence contrary to the same provisions of the Act. The sentences were ordered to run concurrently.
27. Aggrieved by their convictions and sentences, the appellants lodged separate, undated grounds of appeal.
28. The 1st Appellant, Sylvester Onyango Obonyo, challenged both conviction and sentence on the grounds that the prosecution evidence did not corroborate the case against him; that the trial court failed to properly evaluate the evidence and the charge sheet; that the conviction was based on contradictions and inconsistencies; that the firearm produced in evidence was not sufficiently linked to the offence and the alleged recovery was not supported by an inventory; that the charge sheet was defective; that the ingredients of robbery with violence were not proved; and that his statement was not properly considered. He further contended that the trial court failed to properly evaluate the evidence relating to the firearm and that the judgment was unsafe and resulted in a miscarriage of justice.
29. The 2nd Appellant, Musyoka Musembei, challenged the conviction and sentence on the grounds that the charge sheet was defective; that the prosecution evidence was not properly corroborated; that the trial court failed to address two different OB entries which, according to him, did not disclose which arrest and apprehension related to him; that the evidence was insufficient, uncorroborated and incredible; that the alleged recovery of the firearm was not supported by an inventory or proper documentation; that no identification parade was conducted; and that the sentence imposed was not provided for in law.
30. The 3rd Appellant, Peter Kyalo Mbithuka, challenged the conviction and sentence on the grounds that the prosecution evidence contained unresolved contradictions; that the charge was not proved beyond reasonable doubt; that the verdict was unsafe and amounted to a miscarriage of justice; that the firearm produced in evidence was not properly connected to him or the offence, particularly in the absence of an inventory or memorandum of the alleged recovery and signatures of the relevant parties; that no identification parade was conducted; that the trial court failed to consider two OB entries relating to the apprehension of the accused persons; that the charge sheet was defective; and that his sworn defence was not properly considered.
31. The 4th Appellant, Peter Mwendwa Kamai, challenged the conviction and sentence on the grounds that the trial court failed to consider and analyse the prosecution evidence; that the ingredients of robbery with violence were not proved beyond reasonable doubt; that there was no inventory and no identification parade; that the charge sheet was defective; and that his defence was wrongly rejected.
32. The 5th Appellant, Kasola Nzyula, lodged his petition of appeal dated 13th May 2026. He challenged both conviction and sentence on the grounds that no identification parade was conducted to identify him as one of the perpetrators; that the essential ingredients of robbery with violence were not proved; that the conviction was founded on inconsistencies, discrepancies and gaps in the prosecution evidence; that the trial court failed to properly analyse the evidence and instead relied on evidence which he alleges was manufactured, manipulated or framed to implicate him; and that the charge sheet was defective and incurably so under section 214 of the Criminal Procedure Code. He further contended that the sentence was manifestly harsh and excessive in the circumstances.
33. I have considered the undated written submissions filed by the respective appellants and the respondent’s submissions dated 25th August 2026. The appellants’ respective positions may be summarised as follows.
34. The 1st Appellant, Sylvester Onyango Obonyo, submits that the prosecution evidence was inconsistent and insufficient to sustain the conviction. He challenges the identification evidence, the circumstances of his arrest, the alleged recovery of stolen property and the firearm, and the manner in which the trial court evaluated the evidence and his defence. He contends that the ingredients of robbery with violence were not proved beyond reasonable doubt and urges that the conviction be quashed and the sentence set aside.
35. The 2nd Appellant, Musyoka Musembei alias Muse, challenges the circumstances of his arrest and contends that the evidence did not place him at the scene of the robbery or establish his possession of the stolen property. He points to the inconsistencies concerning his arrest, the absence of an identification parade and the complainant’s inability to identify the assailants at the scene. He further submits that his defence was not properly considered.
36. The 3rd Appellant, Peter Kyalo Mbithuka, in his submissions dated 31st August 2026, challenges the identification evidence and the circumstances of his arrest. He submits that the prosecution evidence did not sufficiently connect him with the robbery or the alleged recovered property, and relies on the absence of an identification parade, contradictions in the prosecution case and the failure to properly consider his defence.
37. The 4th Appellant, Peter Mwendwa Kamai, challenges the sufficiency and reliability of the prosecution evidence, particularly the identification evidence, the alleged recovery from his house and the absence of an identification parade. He contends that the ingredients of robbery with violence were not proved beyond reasonable doubt and that his defence was improperly rejected.
38. The 5th Appellant, Kasola Nzyula, challenges the identification evidence, the alleged inconsistencies and gaps in the prosecution case, and the validity of the charge sheet. He submits that his participation in the robbery was not proved beyond reasonable doubt and that the trial court failed to properly evaluate his defence.
39. In response, the respondent submits that the evidence established the robbery, the violence inflicted upon the complainant, the participation of several offenders and the recovery of stolen property and weapons. It contends that the evidence, considered as a whole, sufficiently connected the appellants to the offences and that the absence of an identification parade was not fatal to the prosecution case. The respondent consequently urges the Court to uphold the convictions and sentences.
40. From the grounds of appeal, the evidence on record and the submissions of the parties, the following issues arise for determination:
1) Whether the prosecution proved beyond reasonable doubt that the offence of robbery with violence contrary to section 296(2) of the Penal Code was committed.
2) Whether the appellants were positively and reliably identified as the persons who committed the robbery.
3) Whether the recovery of the complainant’s property established the appellants’ participation in the robbery, including whether the doctrine of recent possession and common intention was properly applicable.
4) Whether the evidence relating to the recovery and possession of the firearm and ammunition proved the offences charged under the Firearms Act against the appellants concerned.
5) Whether there were defects in the charge sheet occasioned prejudice to the appellants or rendered the convictions unsafe.
6) Whether the trial court properly considered and evaluated the appellants’ respective defences.
7) Whether the convictions on the respective counts were supported by the evidence and the sentences imposed were lawful.
47. This being a first appeal, I am required to reconsider and re-evaluate the evidence that was before the trial court and draw my own conclusions, while bearing in mind that I neither saw nor heard the witnesses. That duty was restated in Okeno v Republic [1972] EA 32, a principle relied upon by the appellants. I have therefore considered the evidence afresh, together with the grounds of appeal and the submissions made before this Court.
48. The first issue for determination is whether the prosecution proved beyond reasonable doubt that the offence of robbery with violence contrary to section 296(2) of the Penal Code was committed. The prosecution was required to establish the essential ingredients of the offence, namely, that there was stealing; that the stealing was accompanied, immediately before or immediately after, by actual violence or a threat of actual violence; and that at least one of the circumstances prescribed under section 296(2) was present. In Moneni Ngumbao Mangi v Republic, Criminal Appeal No. 141 of 2005 (Mombasa), the Court of Appeal explained the relationship between stealing and the accompanying violence or threat. In Oluoch v Republic [1985] KLR, the Court identified the three circumstances contemplated under section 296(2), namely being armed with a dangerous or offensive weapon, being in the company of one or more persons, or wounding, beating, striking or using other personal violence, and held that proof of any one of them is sufficient.
49. On whether there was stealing, PW1 testified that on 10th November 2019 at about 6.45 p.m., several men entered his shop at Nguuni Trading Centre and demanded money. They took money from the cash drawer and Kshs.910 from his pocket and compelled him to disclose the existence of further money. He also reported the loss of his Huawei M-Pesa phone, Tecno phone, Oppo A7 and airtime. PW3 and PW5, who were present, confirmed that armed men entered the shop and took property. I am satisfied that the prosecution proved the theft.
50. The evidence of violence was equally clear. PW1 stated that he was struck on the head with a panga as he was taken into the shop and was struck again when he led the assailants to the adjacent store. He was also threatened with a firearm. PW4 examined him on 10th November 2019 and found that he had sustained injuries to the head and back. She produced the treatment notes dated 10th November 2019 as PExh. 10 and the P3 Form as PExh. 11, both documenting the injuries and confirming that the complainant had suffered harm.
51. The circumstances contemplated under section 296(2) were also established. The assailants were armed with a firearm and pangas and acted together. The use of a panga to strike PW1 and the threat to shoot him constituted actual and threatened violence, while the presence of several armed assailants brought the robbery within section 296(2). I therefore find that the prosecution proved beyond reasonable doubt that the incident at Nguuni Trading Centre was a robbery with violence contrary to section 296(2) of the Penal Code.
52. The second issue for determination is whether any of the appellants was identified as one of the persons who committed the robbery. PW1 testified that when the robbery vehicle approached the shop, its occupants alighted and came towards him, but he could not identify them because it was dark and the vehicle had stopped about 30 metres away. Although there was electric light inside the shop, one of the assailants was masked, while the others wore jackets. The description given was only that one person was tall and another short.
53. PW1 did also not give the police a description of any of the assailants in his statements made after the incident. PW3 and PW5, who were present during the robbery, confirmed that they were not able to identify any of the assailants. The prosecution therefore had no evidence of identification made at the scene or shortly thereafter.
54. PW1 subsequently purported to identify the 3rd and 5th appellants in court on 27th January 2021. He pointed out the 3rd Appellant as the person who pulled the drawer, made him lie down and beat him with a panga, and the 5th Appellant as the person who held a bag and came close to him. That was not however not a first identification as PW1 had already seen the appellants in court when he first testified on 12th February 2020. The subsequent pointing out of persons whom he had already seen in court could not constitute independent identification evidence of probative value.
55. The claim by PW1 that he recognised the 3rd and 5th appellants by their voices does not materially improve the position since he had not given the police any description of their voices and no voice identification procedure was undertaken. More importantly, there was no evidence that he recognised their voices during the robbery and in any case, it is practically impossible to identify voices of unknown persons.
56. The principles stated in Wamunga v Republic [1989] KLR 424, Maitanyi v Republic [1986] KLR 198 and Kiarie v Republic [1984] KLR 739 require the Court to examine identification evidence with particular caution where the circumstances of observation were difficult. R v Turnbull [1977] QB 224 similarly emphasises the need to consider the conditions under which the witness observed the alleged offender. Here, those circumstances included darkness outside the shop, the distance from the vehicle, the presence of several assailants, the masking of at least one of them and the absence of any description given at the earliest opportunity.
57. The respondent's submission that an identification parade was not necessary does not resolve the difficulty in the prosecution case. The issue is not the absence of an identification parade; it is that PW1 did not identify the robbers. An identification parade could only have assisted if there had been a witness with a reliable recollection capable of identifying a suspect from among persons of similar appearance. The subsequent in-court pointing out, after PW1 had already seen the appellants in court, could not supply that missing evidence.
58. I therefore find that the prosecution did not establish by reliable identification evidence that any of the appellants was among the persons who committed the robbery.
59. The third issue is whether the recovery of the complainant’s property established the appellants’ participation in the robbery and whether the
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