R
(Being an appeal from original conviction and sentence by Hon. R. Amwayi, PM, in Kaloleni Principal Magistrate’s Court Criminal Case No. E052 of 2023 delivered on 27/11/2023)
1. The Appellants herein were convicted of the offence of robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 16 th day of April, 2023 at Mwiri village of Kombe Location of Rabai sub-county within Kilifi County with others not before the court while armed with dangerous weapons namely, sticks and stones they robbed Emmanuel Malingi (herein referred to as the complainant) of 3 car batteries, 3 car tyres and rims, 1sufuria, 1 jembe, 3 coconut seedlings, 1 manual maize sheller, 1 chain block, 1 towing chain, 2 car life savers, 2 omax wireless microphone receiver, and Samsung TV remote control all valued at Ksh. 81,20/= and at the time of robbery assaulted the said complainant.
2. Each of the Appellants was sentenced to serve 40 years imprisonment. They were aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
(1) That the learned trial magistrate erred in law and fact in finding that the prosecution had proved the charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal.
(2) That the learned magistrate erred in law and in fact in finding that the principle of common intention was applicable in the circumstances of the case.
(3) That the learned magistrate erred in law and fact in misapprehending the evidence adduced before her and thereby arriving at erroneous conclusions.
(4) That the learned magistrate erred in law and in fact in convicting the Appellants.
Case for the prosecution
3. The case for the prosecution was that the complainant hails from the same area with the Appellants. The complainant had at the material time closed a foot path that ran through his shamba. He had blocked the same with twigs and had dug a trench.
4. That on the morning of the material day the complainant was at his home when he saw a group of people gathered at the home of a neighbour. He started to record what the people were doing. That after a while the people went towards his shamba. They removed the twigs he had used to close the pathway. They then proceeded to his homestead and started to beat him up with sticks, pieces of wood and stones. They injured him. They frog matched him to the place he had blocked the pathway. They forced him to fill up the trench. After he completed doing so the people dispersed. He was left with one of the people, the 4 th Accused who was acquitted by the trial court. The said person escorted him to his homestead. He then told the said person that one person called Samson had stolen his mobile phone. The 4 th Accused went and picked the phone from Samson and brought it back to him.
5. That the complainant on getting to his home found some itemss (as stated in the charge sheet) having been stolen from his house and homestead. The incident was captured by a CCTV footage installed at his home. He went for treatment at Holali health centre and at Mariakani sub county hospital. He reported the incident at Bondora police post.
6. PC Makeo PW3 and PC Mugo PW5 of the said police post issued the complainant with a P3 form. They visited the scene and picked some stones and sticks used to assault the complainant.
7. The complainant was examined at Mariakani sub county hospital on the 17/4/2023 by a clinical officer PW4 who found him with painful head and neck, painful tender chest, visible stroke marks on the arms, bruised hands and painful and swollen right thigh with bruises. The clinical officer filled the complainant`s P3 form and classified the degree of injury as harm.
8. The CCTV footage was put in a flash disk and sent to the DCI headquarters where it was examined by a forensic and imaging analyst PW6. The footage captured a group of people removing things from a footpath and some running after the complainant. It also captured the complainant being attacked by some people and him fleeing. It showed some people carrying away things. It was however the evidence of PW6 that it was not possible to identify the particular individuals involved due to the distance from the camera point. PW6 prepared a report on the same. The appellants were charged with the offence of robbery with violence. During the hearing the clinical officer PW4 produced the treatment notes and the P3 form as exhibits, P.Exh.1 and 2 respectively. PC Mugo PW5 produced the sticks and stones as exhibits, P.Exh.4. The forensic and imaging analyst PW6 produced his forensic report, the exhibit memo, still photographs from the CCTV footage and flash disk as exhibits, P.Exh.5 - 8 respectively.
Defence case
9. When placed to his defence the 1 st appellant (DW1) testified that he is a farmer at Mwiri village. That his farm neighbours that of the complainant. That the complainant had blocked a footpath. That on the material day he was ploughing in his farm when boda boda riders passed by while heading to the home of the complainant. They were screaming that he opens the foot path that he had blocked. He went to where the complainant had blocked the foot path to see what was happening. People started to push the complainant. He, DW1, tried to stop them but they were too many. The complainant tried to refill the trench but he was unable to do so. He denied that he stole anything from the complainant.
10. The 2 nd appellant (Kasena Daniel Matsaki DW3) stated in his defence that he is a farmer at Mwiri village. That he was on the material day attending the burial of a neighbour to the complainant. That while there boda boda riders passed by and headed towards the farm of the complainant. They proceeded to where the complainant had blocked the footpath and removed the twigs. The complainant started to take photographs of the incident with his phone. The riders started to assault the complainant. He and other people stopped the meeting and went to help the complainant. He told the riders to stop and let the complainant fill up the trench. The boda boda riders told the complainant to fill up the trench. The complainant did so with his hands. He, the 2 nd appellant, went to his home and fetched a jembe to help in filling up the trench. After the complainant finished filling up the trench, he, Fatuma and Mwiri escorted him to his home.
11. The third appellant (Stephen Kazungu DW5), stated in his defence that the complainant had blocked a footpath. That he was on the material day attending a burial when motor cycle riders passed by and started to open up the blocked footpath. The complainant started to take photographs of the incident. He and other people went to see what was going on. The riders started to beat up the complainant. He, Kasena, Mwamumba and Mwiri went to separate them. Kasena brought a jembe for the complainant to fill up the trench. He, the 3 rd Appellant, ensured that the complainant filled up the trench. After the complainant did so, they took him to his home. The complainant was injured and had visible stroke marks on the hands.
12. The appellants called three witnesses. Humphrey Katana Thoya DW2, testified that he is a village elder. That the 1 st appellant, Mwamumba, is from his village. That he did not witness the incident but he later learnt that the complainant had filled up the trench he had dug up on a footpath.
13. Gladys Dama Kaingu DW4 testified that she is a neighbour to the complainant. That she was on the material day at home when boda boda riders passed by and went to the shamba of the complaint. She heard noise from the complainant. She went to check what was happening. She heard Mwiri telling the complainant to open up the foot path. Mwiri escorted the complainant to open the path. Kasena then brought a jembe. He and Mwamumba assisted the complainant to fill up the trench. Mwiri then escorted the complainant to his home.
14. Fatuma Ali Thoya DW7 testified that she is a farmer at Mwiri village. That on the material day she was at home when she heard noise from a group of people. She went to check. Mwiri then took the complainant to the trench and told him to fill it up. The complainant started to fill it up with his hands. Kasena went and brought a jembe and gave it to the complainant to fill the trench. She went and found Mwiti, Kasena, Stephen Kazungu and Mwamumba at the trench. That after the complainant filled the trench, Mwiri took him home. She did not see any injuries on the complainant.
15. The appeal proceeded by way of written submissions of the counsels for the appellants and the respondent.
Appellants` submissions
16. The appellants submitted through their counsel that the complainant was the only eye witness to the incident as PW2 did not witness the incident. That the police officers PW3 and PW5 attended the scene after the incident and only made observations. That the complainant only found items missing from his home after the incident and did not see any person taking away the items. That the inference that the items were stolen during the assault was an assumption and not based on the evidence.
17. It was submitted that the only evidence tending to link the appellants with the offence was the CCTV footage but then the complainant did not identify any of the appellants in the footage. More so that the ICT analyst PW6 was categorical that specific suspects were not identifiable in the footage due to the large crowd that approached the scene and the distance between the camera and the identifiable objects. That none of the appellants was identified when the CCTV was played in court. Additionally, that none of the stolen property was recovered from the appellants.
18. It was submitted that the CCTV footage was admitted in court without satisfying the conditions for admissibility of electronic evidence. That there was no certificate of authenticity of electronic evidence as required by section 106B of the Evidence Act. That the certificate is mandatory as was held in the Court of Appeal decision in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others (2015) KECA 397 (KLR) .
19. It was submitted that the elements of the offence of robbery with violence were not met. That there was no evidence that the any violence or threats were used for the purpose of obtaining the stolen items, retaining it or overcoming resistance to its taking or retention. That the evidence adduced before the trial court indicated that the complainant was assaulted for blocking a community path. That theft of the items was discovered later. That there was no evidence that the people who allegedly attacked the complainant did so with the intention of obtaining, retaining or overcoming resistance to the stolen items. That the assault and the theft were not connected and the element of robbery remains unproven.
20. Counsel for the appellant submitted that the trial court misdirected itself in finding that the appellants were identified in the CCTV footage which was not supported by evidence. That the trial magistrate found the principle of common intention to have been applicable in the case yet the evidence did not establish a meeting of the minds among the appellants. That mere presence in a crowd is insufficient. That the complainant did not observe the 2 nd and 3 rd Appellants assaulting him while the involvement of the 1 st appellant is unclear. On common intention, counsel cited the South African Case of Makhubela v The state; Cases CCT 216/15 and 221/16, where the Constitutional Court held that for the doctrine to apply, the prosecution must satisfy the following on the accused persons:
(i) Presence at the scene where the evidence was being committed.
(ii) Awareness of the assault on the victims;
(iii) Intention to share a common purpose with those committing the assault;
(iv) Manifestation of that shared purpose by actively associating with the conduct of others; and
(v) Possession of the requisite mens rea concerning the unlawful outcome.
21. It was submitted that in the above referred to case, the court emphasized that active participation must be proximate and significant, not a peripheral or minimal connection. That liability under common law is limited to those whose participation materially contributes to the criminal outcome but casual presence or indirect association is insufficient to ground a conviction. That the presence of the appellants at the scene did not automatically imply a common intention with the crowd that assaulted the complainant. That there was no evidence that the appellants were part of the group responsible.
22. It was submitted that the prosecution was required to prove beyond reasonable doubt that each of the appellant had the requisite mens rea at the time of the alleged offence. That this means that each appellant must have either intended the criminal act or foreseen its possibility and nevertheless associated actively and recklessly with the conduct that led to it. That though the complainant said that the 1 st appellant and others attacked him, he did not say how the 1 st appellant attacked him – whether by hand or weapon. That he in his evidence only referred to “they” which appear to refer to a crowd collectively and not to the first appellant individually. Therefore, that the conviction was unsafe. Counsel for the appellants urged the court to acquit the appellants.
Respondent`s submissions
23. Counsel for the respondent on the other hand submitted that the evidence adduced before the trial court showed that the appellants were at the scene where they participated in the assault of the complainant. That it was evident that the complainant was assaulted at his farm and not near his house. That the CCTV footage did not show the appellant assaulting or robbing the complainant. That the incident took place at 8 am though the complainant was the only eye witness to the incident. He however did not say that he saw any of the appellants stealing his property but that it is only after the assault that he went home and found his property stolen. Arising from the above, counsel for the respondent submitted that it would have been saver for the trial court to enter a conviction for the offence of assault.
Analysis and determination
24. This being a first appeal, this court is expected to review and analyse the evidence afresh in order to form an independent opinion and draw its own conclusions while bearing in mind that it did not have the benefit of seeing and observing the demeanour of witnesses -see Okeno v Republic [1972] E.A. 32 and Kiilu & Another v Republic [2005] 1 KLR, 174 .
25. I have considered the grounds of appeal, the record of the trial court and the submissions of the appellant and those of the respondent.
26. The appellants were facing a criminal prosecution. It was the duty of the prosecution to prove the case beyond all reasonable doubt. Denning J explained what reasonable doubt is in the case of Miller – V- Minister of Pensions [1947] as follows:
“It need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as 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 possible, but not in the lease probable.” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
27. The offence of robbery with violence is defined in Sections 295 and 296(2) of the Penal Code as follows:
“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
28. The elements of the offence were set out by the Court of Appeal in the case of Oluoch v Republic [1985] KLR thus:
"Robbery with violence is committed in any of the following circumstances:
i. The offender is armed with any dangerous and offensive weapon or instrument; or
ii. The offender is in the company of one or more person or persons; or
iii. At or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses other personal violence to any person ………
29. It is in this respect the duty of this court to interrogate the evidence adduced before the trial court and determine whether the elements of the offence of robbery with violence were proved beyond reasonable doubt.
30. It is not in doubt from the evidence adduced before the trial court that the complainant was beaten by a group of people. The CCTV footage played in the trial court showed the complainant being attacked by a group of people and him fleeing from them. The complainant stated that he was assaulted by a group of about 10 people who included the three appellants. That they hit him with sticks, stones and pieces of wood. That he ran away but the people chased him and continued to beat him until the 4 th accused (already acquitted) pleaded with them to stop beating him. The people then took him to where he had dug the trench and forced him to fill it up.
31. The appellants themselves confirmed in their defence that the complainant was assaulted. The 1 st appellant stated that the complainant was pushed by some people who “tore him up and down”. The 2 nd Appellant stated that when he reached the scene the complainant was being assaulted. The 3 rd Appellant said that the complainant was beaten up by motor cycle riders.
32. The complainant was examined by a clinical officer PW4 who confirmed the injuries and assessed the degree of injury as harm. In view of the above evidence, the fact of assault on the complainant was proved.
33. The trial court found that the appellants participated in assaulting the complainant. I am in agreement with the trial magistrate that the appellants were among the people who assaulted the complainant. The appellants were people well known to the complainant as they were from his locality. The incident occurred in broad day light. There was no reason for the complainant to fabricate the evidence against the appellants that they were among the people who assaulted him. It was therefore proved that the appellants participated in assaulting the complainant.
34. There is further no doubt that the property of the complainant was stolen during the fracas. There was no direct evidence that the appellants stole the property. The complainant did not see any of them stealing the property. Neither were they captured in the CCTV footage carting away the property. It is some other people who were captured in the CCTV footage taking away some items. The question was whether the appellants had the common intention to steal the goods with others who were captured in the CCTV footage stealing the goods.
35. The trial court found that the appellants had common intention to commit the offence of robbery with violence.
36. Section 21 of the Penal Code defines common intention as follows:-
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
37. The Court of Appeal in Dickson Mwangi Munene & another v Republic [2014] KECA 774 (KLR) reviewed the law on common intention and conclude as follows:
57. It is evident from the above definition and authorities that in order to secure a conviction on the basis of common intention, the prosecution must prove that the accused had (a) a criminal intention to commit the offence charged jointly with others, (b) the act committed by one or more of the perpetrators in respect of which it is sought to hold an accused guilty, even though it is outside the common design, was a natural and foreseeable consequence of effecting that common purpose, and that (c) the accused was aware of this when he or she agreed to participate in that joint criminal act.
38. The court in the same case referred to the case of Abdi Alli vs R., 23 (1956) E.A.C.A. 573 where the court held the test for joint responsibility to be common intention. The court relying on R Vs Cheya [1973] E.A. 500 at p. 204 and held as follows:-
“[T]he existence of a common intention being the sole test of joint responsibility it must be proved what the common intention was and that the common act for which the accused were to be made responsible was acted upon in furtherance of that common intention. The presumption of constructive intention must not be too readily applied or pushed too far. The mere fact that a man may think a thing likely to happen is vastly different from his intending that that thing should happen. The latter ingredient is necessary under this section, the former by itself is irrelevant to the section. It is only when a court can, with some judicial certitude, hold that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result that this section can he applied.”
39. It was the evidence of the complainant that the appellants and others found him at his homestead and started beating him. They frog matched him to his shamba where he had closed a footpath by digging a trench and forced him to fill it up. That after he filled up the trench, he went back to his homestead and found the property stated in the charge sheet having been stolen.
40. It would appear from the evidence of the complainant that the place where he had dug the trench was a distance away from his homestead. This would explain why he never saw people carting away his goods from his homestead and only came to discover the theft after he returned to the homestead.
41. It would appear from the evidence that there were 2 groups of people – those who beat up the appellant and led him to the shamba to fill up the trench and those who were left behind at the homestead and stole the complainant`s goods. The appellants appear to have been in the former group of those who frog matched the appellant to the shamba to fill up the trench. Their witnesses placed them at the place the complainant was forced to fill up the trench. It would appear t heir only intention was to force the appellant to open the footpath. There was no evidence from which it could be inferred that they were aware that the complainant`s goods were stolen. There is no evidence upon which it can be inferred that they had common intention with the other group to steal the complainant`s goods. There was no evidence that they had premeditated or pre-planned the stealing of the complainant`s goods in concert with the other group. Mens rea to steal the complainant`s goods was therefore not proved against the appellants. The only common intention proved against them was to beat up the complainant and to force him to open the footpath. In my view, the trial court erred in finding that the appellants had common intention to rob the complainant.
In view of the above, I do not find evidence that the appellants robbed the complainant of his goods. The conviction of robbery with violence is hereby quashed and the respective sentences set aside.
42. I do however find that the Appellants unlawfully assaulted the complainant and occasioned him actual bodily harm contrary to section 251 of the Penal Code. They are accordingly found guilty of the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and convicted accordingly.
43. On sentence for the offence of assault causing actual bodily harm, I have considered that the Appellants took the law into their own hands and assaulted the complainant while forcing him to open a footpath that he had closed. If citizens were allowed to conduct their affairs in such a manner, it can lead to lawlessness in the country. That notwithstanding, I have considered that the appellants were committed to prison on 27 th November 2023. They have been in prison custody for about two years and 10 months. I consider the period served to be sufficient for the offence of assault causing actual bodily harm. I order the Appellants be released from prison custody forthwith unless otherwise lawfully held.
Delivered, dated and signed at GARSEN this 16 th day of September, 2026
In the presence of:
Ms Mango HB for Mr. Maundu for Appellants
Mr. Oluoch for Respondent
Appellants – present virtually
Court Assistant – Rahma
(Being an appeal from original conviction and sentence by Hon. R. Amwayi, PM, in Kaloleni Principal Magistrate’s Court Criminal Case No. E052 of 2023 delivered on 27/11/2023)
1. The Appellants herein were convicted of the offence of robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that on the 16 th day of April, 2023 at Mwiri village of Kombe Location of Rabai sub-county within Kilifi County with others not before the court while armed with dangerous weapons namely, sticks and stones they robbed Emmanuel Malingi (herein referred to as the complainant) of 3 car batteries, 3 car tyres and rims, 1sufuria, 1 jembe, 3 coconut seedlings, 1 manual maize sheller, 1 chain block, 1 towing chain, 2 car life savers, 2 omax wireless microphone receiver, and Samsung TV remote control all valued at Ksh. 81,20/= and at the time of robbery assaulted the said complainant.
2. Each of the Appellants was sentenced to serve 40 years imprisonment. They were aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
(1) That the learned trial magistrate erred in law and fact in finding that the prosecution had proved the charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal.
(2) That the learned magistrate erred in law and in fact in finding that the principle of common intention was applicable in the circumstances of the case.
(3) That the learned magistrate erred in law and fact in misapprehending the evidence adduced before her and thereby arriving at erroneous conclusions.
(4) That the learned magistrate erred in law and in fact in convicting the Appellants.
Case for the prosecution
3. The case for the prosecution was that the complainant hails from the same area with the Appellants. The complainant had at the material time closed a foot path that ran through his shamba. He had blocked the same with twigs and had dug a trench.
4. That on the morning of the material day the complainant was at his home when he saw a group of people gathered at the home of a neighbour. He started to record what the people were doing. That after a while the people went towards his shamba. They removed the twigs he had used to close the pathway. They then proceeded to his homestead and started to beat him up with sticks, pieces of wood and stones. They injured him. They frog matched him to the place he had blocked the pathway. They forced him to fill up the trench. After he completed doing so the people dispersed. He was left with one of the people, the 4 th Accused who was acquitted by the trial court. The said person escorted him to his homestead. He then told the said person that one person called Samson had stolen his mobile phone. The 4 th Accused went and picked the phone from Samson and brought it back to him.
5. That the complainant on getting to his home found some itemss (as stated in the charge sheet) having been stolen from his house and homestead. The incident was captured by a CCTV footage installed at his home. He went for treatment at Holali health centre and at Mariakani sub county hospital. He reported the incident at Bondora police post.
6. PC Makeo PW3 and PC Mugo PW5 of the said police post issued the complainant with a P3 form. They visited the scene and picked some stones and sticks used to assault the complainant.
7. The complainant was examined at Mariakani sub county hospital on the 17/4/2023 by a clinical officer PW4 who found him with painful head and neck, painful tender chest, visible stroke marks on the arms, bruised hands and painful and swollen right thigh with bruises. The clinical officer filled the complainant`s P3 form and classified the degree of injury as harm.
8. The CCTV footage was put in a flash disk and sent to the DCI headquarters where it was examined by a forensic and imaging analyst PW6. The footage captured a group of people removing things from a footpath and some running after the complainant. It also captured the complainant being attacked by some people and him fleeing. It showed some people carrying away things. It was however the evidence of PW6 that it was not possible to identify the particular individuals involved due to the distance from the camera point. PW6 prepared a report on the same. The appellants were charged with the offence of robbery with violence. During the hearing the clinical officer PW4 produced the treatment notes and the P3 form as exhibits, P.Exh.1 and 2 respectively. PC Mugo PW5 produced the sticks and stones as exhibits, P.Exh.4. The forensic and imaging analyst PW6 produced his forensic report, the exhibit memo, still photographs from the CCTV footage and flash disk as exhibits, P.Exh.5 - 8 respectively.
Defence case
9. When placed to his defence the 1 st appellant (DW1) testified that he is a farmer at Mwiri village. That his farm neighbours that of the complainant. That the complainant had blocked a footpath. That on the material day he was ploughing in his farm when boda boda riders passed by while heading to the home of the complainant. They were screaming that he opens the foot path that he had blocked. He went to where the complainant had blocked the foot path to see what was happening. People started to push the complainant. He, DW1, tried to stop them but they were too many. The complainant tried to refill the trench but he was unable to do so. He denied that he stole anything from the complainant.
10. The 2 nd appellant (Kasena Daniel Matsaki DW3) stated in his defence that he is a farmer at Mwiri village. That he was on the material day attending the burial of a neighbour to the complainant. That while there boda boda riders passed by and headed towards the farm of the complainant. They proceeded to where the complainant had blocked the footpath and removed the twigs. The complainant started to take photographs of the incident with his phone. The riders started to assault the complainant. He and other people stopped the meeting and went to help the complainant. He told the riders to stop and let the complainant fill up the trench. The boda boda riders told the complainant to fill up the trench. The complainant did so with his hands. He, the 2 nd appellant, went to his home and fetched a jembe to help in filling up the trench. After the complainant finished filling up the trench, he, Fatuma and Mwiri escorted him to his home.
11. The third appellant (Stephen Kazungu DW5), stated in his defence that the complainant had blocked a footpath. That he was on the material day attending a burial when motor cycle riders passed by and started to open up the blocked footpath. The complainant started to take photographs of the incident. He and other people went to see what was going on. The riders started to beat up the complainant. He, Kasena, Mwamumba and Mwiri went to separate them. Kasena brought a jembe for the complainant to fill up the trench. He, the 3 rd Appellant, ensured that the complainant filled up the trench. After the complainant did so, they took him to his home. The complainant was injured and had visible stroke marks on the hands.
12. The appellants called three witnesses. Humphrey Katana Thoya DW2, testified that he is a village elder. That the 1 st appellant, Mwamumba, is from his village. That he did not witness the incident but he later learnt that the complainant had filled up the trench he had dug up on a footpath.
13. Gladys Dama Kaingu DW4 testified that she is a neighbour to the complainant. That she was on the material day at home when boda boda riders passed by and went to the shamba of the complaint. She heard noise from the complainant. She went to check what was happening. She heard Mwiri telling the complainant to open up the foot path. Mwiri escorted the complainant to open the path. Kasena then brought a jembe. He and Mwamumba assisted the complainant to fill up the trench. Mwiri then escorted the complainant to his home.
14. Fatuma Ali Thoya DW7 testified that she is a farmer at Mwiri village. That on the material day she was at home when she heard noise from a group of people. She went to check. Mwiri then took the complainant to the trench and told him to fill it up. The complainant started to fill it up with his hands. Kasena went and brought a jembe and gave it to the complainant to fill the trench. She went and found Mwiti, Kasena, Stephen Kazungu and Mwamumba at the trench. That after the complainant filled the trench, Mwiri took him home. She did not see any injuries on the complainant.
15. The appeal proceeded by way of written submissions of the counsels for the appellants and the respondent.
Appellants` submissions
16. The appellants submitted through their counsel that the complainant was the only eye witness to the incident as PW2 did not witness the incident. That the police officers PW3 and PW5 attended the scene after the incident and only made observations. That the complainant only found items missing from his home after the incident and did not see any person taking away the items. That the inference that the items were stolen during the assault was an assumption and not based on the evidence.
17. It was submitted that the only evidence tending to link the appellants with the offence was the CCTV footage but then the complainant did not identify any of the appellants in the footage. More so that the ICT analyst PW6 was categorical that specific suspects were not identifiable in the footage due to the large crowd that approached the scene and the distance between the camera and the identifiable objects. That none of the appellants was identified when the CCTV was played in court. Additionally, that none of the stolen property was recovered from the appellants.
18. It was submitted that the CCTV footage was admitted in court without satisfying the conditions for admissibility of electronic evidence. That there was no certificate of authenticity of electronic evidence as required by section 106B of the Evidence Act. That the certificate is mandatory as was held in the Court of Appeal decision in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others (2015) KECA 397 (KLR) .
19. It was submitted that the elements of the offence of robbery with violence were not met. That there was no evidence that the any violence or threats were used for the purpose of obtaining the stolen items, retaining it or overcoming resistance to its taking or retention. That the evidence adduced before the trial court indicated that the complainant was assaulted for blocking a community path. That theft of the items was discovered later. That there was no evidence that the people who allegedly attacked the complainant did so with the intention of obtaining, retaining or overcoming resistance to the stolen items. That the assault and the theft were not connected and the element of robbery remains unproven.
20. Counsel for the appellant submitted that the trial court misdirected itself in finding that the appellants were identified in the CCTV footage which was not supported by evidence. That the trial magistrate found the principle of common intention to have been applicable in the case yet the evidence did not establish a meeting of the minds among the appellants. That mere presence in a crowd is insufficient. That the complainant did not observe the 2 nd and 3 rd Appellants assaulting him while the involvement of the 1 st appellant is unclear. On common intention, counsel cited the South African Case of Makhubela v The state; Cases CCT 216/15 and 221/16, where the Constitutional Court held that for the doctrine to apply, the prosecution must satisfy the following on the accused persons:
(i) Presence at the scene where the evidence was being committed.
(ii) Awareness of the assault on the victims;
(iii) Intention to share a common purpose with those committing the assault;
(iv) Manifestation of that shared purpose by actively associating with the conduct of others; and
(v) Possession of the requisite mens rea concerning the unlawful outcome.
21. It was submitted that in the above referred to case, the court emphasized that active participation must be proximate and significant, not a peripheral or minimal connection. That liability under common law is limited to those whose participation materially contributes to the criminal outcome but casual presence or indirect association is insufficient to ground a conviction. That the presence of the appellants at the scene did not automatically imply a common intention with the crowd that assaulted the complainant. That there was no evidence that the appellants were part of the group responsible.
22. It was submitted that the prosecution was required to prove beyond reasonable doubt that each of the appellant had the requisite mens rea at the time of the alleged offence. That this means that each appellant must have either intended the criminal act or foreseen its possibility and nevertheless associated actively and recklessly with the conduct that led to it. That though the complainant said that the 1 st appellant and others attacked him, he did not say how the 1 st appellant attacked him – whether by hand or weapon. That he in his evidence only referred to “they” which appear to refer to a crowd collectively and not to the first appellant individually. Therefore, that the conviction was unsafe. Counsel for the appellants urged the court to acquit the appellants.
Respondent`s submissions
23. Counsel for the respondent on the other hand submitted that the evidence adduced before the trial court showed that the appellants were at the scene where they participated in the assault of the complainant. That it was evident that the complainant was assaulted at his farm and not near his house. That the CCTV footage did not show the appellant assaulting or robbing the complainant. That the incident took place at 8 am though the complainant was the only eye witness to the incident. He however did not say that he saw any of the appellants stealing his property but that it is only after the assault that he went home and found his property stolen. Arising from the above, counsel for the respondent submitted that it would have been saver for the trial court to enter a conviction for the offence of assault.
Analysis and determination
24. This being a first appeal, this court is expected to review and analyse the evidence afresh in order to form an independent opinion and draw its own conclusions while bearing in mind that it did not have the benefit of seeing and observing the demeanour of witnesses -see Okeno v Republic [1972] E.A. 32 and Kiilu & Another v Republic [2005] 1 KLR, 174 .
25. I have considered the grounds of appeal, the record of the trial court and the submissions of the appellant and those of the respondent.
26. The appellants were facing a criminal prosecution. It was the duty of the prosecution to prove the case beyond all reasonable doubt. Denning J explained what reasonable doubt is in the case of Miller – V- Minister of Pensions [1947] as follows:
“It need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as 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 possible, but not in the lease probable.” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
27. The offence of robbery with violence is defined in Sections 295 and 296(2) of the Penal Code as follows:
“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
28. The elements of the offence were set out by the Court of Appeal in the case of Oluoch v Republic [1985] KLR thus:
"Robbery with violence is committed in any of the following circumstances:
i. The offender is armed with any dangerous and offensive weapon or instrument; or
ii. The offender is in the company of one or more person or persons; or
iii. At or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses other personal violence to any person ………
29. It is in this respect the duty of this court to interrogate the evidence adduced before the trial court and determine whether the elements of the offence of robbery with violence were proved beyond reasonable doubt.
30. It is not in doubt from the evidence adduced before the trial court that the complainant was beaten by a group of people. The CCTV footage played in the trial court showed the complainant being attacked by a group of people and him fleeing from them. The complainant stated that he was assaulted by a group of about 10 people who included the three appellants. That they hit him with sticks, stones and pieces of wood. That he ran away but the people chased him and continued to beat him until the 4 th accused (already acquitted) pleaded with them to stop beating him. The people then took him to where he had dug the trench and forced him to fill it up.
31. The appellants themselves confirmed in their defence that the complainant was assaulted. The 1 st appellant stated that the complainant was pushed by some people who “tore him up and down”. The 2 nd Appellant stated that when he reached the scene the complainant was being assaulted. The 3 rd Appellant said that the complainant was beaten up by motor cycle riders.
32. The complainant was examined by a clinical officer PW4 who confirmed the injuries and assessed the degree of injury as harm. In view of the above evidence, the fact of assault on the complainant was proved.
33. The trial court found that the appellants participated in assaulting the complainant. I am in agreement with the trial magistrate that the appellants were among the people who assaulted the complainant. The appellants were people well known to the complainant as they were from his locality. The incident occurred in broad day light. There was no reason for the complainant to fabricate the evidence against the appellants that they were among the people who assaulted him. It was therefore proved that the appellants participated in assaulting the complainant.
34. There is further no doubt that the property of the complainant was stolen during the fracas. There was no direct evidence that the appellants stole the property. The complainant did not see any of them stealing the property. Neither were they captured in the CCTV footage carting away the property. It is some other people who were captured in the CCTV footage taking away some items. The question was whether the appellants had the common intention to steal the goods with others who were captured in the CCTV footage stealing the goods.
35. The trial court found that the appellants had common intention to commit the offence of robbery with violence.
36. Section 21 of the Penal Code defines common intention as follows:-
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
37. The Court of Appeal in Dickson Mwangi Munene & another v Republic [2014] KECA 774 (KLR) reviewed the law on common intention and conclude as follows:
57. It is evident from the above definition and authorities that in order to secure a conviction on the basis of common intention, the prosecution must prove that the accused had (a) a criminal intention to commit the offence charged jointly with others, (b) the act committed by one or more of the perpetrators in respect of which it is sought to hold an accused guilty, even though it is outside the common design, was a natural and foreseeable consequence of effecting that common purpose, and that (c) the accused was aware of this when he or she agreed to participate in that joint criminal act.
38. The court in the same case referred to the case of Abdi Alli vs R., 23 (1956) E.A.C.A. 573 where the court held the test for joint responsibility to be common intention. The court relying on R Vs Cheya [1973] E.A. 500 at p. 204 and held as follows:-
“[T]he existence of a common intention being the sole test of joint responsibility it must be proved what the common intention was and that the common act for which the accused were to be made responsible was acted upon in furtherance of that common intention. The presumption of constructive intention must not be too readily applied or pushed too far. The mere fact that a man may think a thing likely to happen is vastly different from his intending that that thing should happen. The latter ingredient is necessary under this section, the former by itself is irrelevant to the section. It is only when a court can, with some judicial certitude, hold that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result that this section can he applied.”
39. It was the evidence of the complainant that the appellants and others found him at his homestead and started beating him. They frog matched him to his shamba where he had closed a footpath by digging a trench and forced him to fill it up. That after he filled up the trench, he went back to his homestead and found the property stated in the charge sheet having been stolen.
40. It would appear from the evidence of the complainant that the place where he had dug the trench was a distance away from his homestead. This would explain why he never saw people carting away his goods from his homestead and only came to discover the theft after he returned to the homestead.
41. It would appear from the evidence that there were 2 groups of people – those who beat up the appellant and led him to the shamba to fill up the trench and those who were left behind at the homestead and stole the complainant`s goods. The appellants appear to have been in the former group of those who frog matched the appellant to the shamba to fill up the trench. Their witnesses placed them at the place the complainant was forced to fill up the trench. It would appear t heir only intention was to force the appellant to open the footpath. There was no evidence from which it could be inferred that they were aware that the complainant`s goods were stolen. There is no evidence upon which it can be inferred that they had common intention with the other group to steal the complainant`s goods. There was no evidence that they had premeditated or pre-planned the stealing of the complainant`s goods in concert with the other group. Mens rea to steal the complainant`s goods was therefore not proved against the appellants. The only common intention proved against them was to beat up the complainant and to force him to open the footpath. In my view, the trial court erred in finding that the appellants had common intention to rob the complainant.
In view of the above, I do not find evidence that the appellants robbed the complainant of his goods. The conviction of robbery with violence is hereby quashed and the respective sentences set aside.
42. I do however find that the Appellants unlawfully assaulted the complainant and occasioned him actual bodily harm contrary to section 251 of the Penal Code. They are accordingly found guilty of the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code and convicted accordingly.
43. On sentence for the offence of assault causing actual bodily harm, I have considered that the Appellants took the law into their own hands and assaulted the complainant while forcing him to open a footpath that he had closed. If citizens were allowed to conduct their affairs in such a manner, it can lead to lawlessness in the country. That notwithstanding, I have considered that the appellants were committed to prison on 27 th November 2023. They have been in prison custody for about two years and 10 months. I consider the period served to be sufficient for the offence of assault causing actual bodily harm. I order the Appellants be released from prison custody forthwith unless otherwise lawfully held.
Delivered, dated and signed at GARSEN this 16 th day of September, 2026
In the presence of:
Ms Mango HB for Mr. Maundu for Appellants
Mr. Oluoch for Respondent
Appellants – present virtually
Court Assistant – Rahma