(Being an Appeal against conviction and sentence in a case of Robbery with Violence Contrary to Section 295 as read together with Section 296 (2) of the Penal Code in Tawa Magistrates Courts Criminal Case No. 94 of 2020 – Judgment delivered on 7 th March, 2023 by Hon. M.K. Mutegi, PM)
1. The Appellant was charged with the offence of robbery with violence contrary to Section 295 as read together with Section 296 (2) of the Penal Code. The particulars of the charge are that on the 24 th December, 2019 at around 9.00 p.m. at Nthungoni Market, the Appellant robbed Peter Mwanza Munyao of his mobile phone make Techno Y2, his identity card, wallet, cash Kshs.1,000/= all valued at Kshs 4,000/= and immediately after the time of such robbery used actual violence to the said Peter Mwanza Munyao.
2. The Appellant entered a plea of not guilty, and the matter proceeded to trial. The prosecution called five witnesses, and the Appellant was put on his defence, and he elected to remain silent.
3. At the close of the trial, the trial Court found the Appellant guilty and sentenced him to death.
4. Dissatisfied with the conviction and sentence, he lodged a petition of appeal raising the following grounds:
i. That the trial court convicted and sentenced the appellant notwithstanding that the prosecution did not prove the case beyond reasonable doubt;
ii. That the trial court convicted and sentenced the appellant notwithstanding that there were contradictions, inconsistencies, and a fabricated prosecution case;
iii. That the trial court convicted and sentenced the appellant despite the plausible defence, which the prosecution evidence did not displace;
iv. That the trial court convicted and sentenced the appellant notwithstanding that the ingredients of the offence had not been established.
5. The Appellant filed submissions. He argued that his conviction and sentence should be overturned on the grounds advanced on appeal and that he did not receive a fair trial. He stated that he had no legal representation and that his sentence of death was excessively severe.
6. The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The Respondent maintained that the trial Court acted within the bounds of the law and that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
Analysis and determination
7. The issues for determination are as follows;
i. Whether the appellant was afforded a fair trial;
ii. Whether the prosecution proved their case to the required threshold;
iii. Whether the sentence was appropriate.
8. It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. ( See Pandya vs. Republic (1957) EA 336 ).
9. I have examined the record and weighed in on the ground of appeal that the appellant was not granted legal representation. The right to legal representation in Kenya is a fundamental aspect of the right to a fair trial, guaranteed under Article 50 (2) of the Constitution of Kenya, 2010 . An accused person has a right to secure legal representation. From the wording of Article 50 (2) (h), the right to legal representation at the expense of the state is not absolute, as the Court must first satisfy itself that substantial injustice may result before it enforces the right to legal representation at the expense of the state. The Court believes that the learned magistrate, in not granting an order for state-paid legal consideration, did so with due consideration, and there is no reason for this Court to interfere with that exercise of discretion.
10. I have also reviewed the proceedings before the trial Court. The Appellant participated in the trial, and there are no procedural flaws that would lead this Court to conclude that the Appellant was not afforded a fair trial. The record indicates that the Appellant confirmed his readiness to proceed during the examination of the witness. Additionally, he was informed about the provisions of Section 211 of the Criminal Procedure Code and chose to remain silent.
Whether the prosecution proved their case to the required threshold;
11. In the case of Oluoch Vs Republic [1985] KLR the Court of Appeal stated:
“Robbery with violence is committed in any of the following circumstances:
a. The offender is armed with any dangerous and offensive weapon or instrument; or
b. The offender is in company with one or more person or persons; or
c. 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.”
12. And according to the case of Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007,
“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”
13. Drawing from the testimony of PW1 and PW2 , I am persuaded that an incident occurred on the fateful night. The Appellant said that the assailant attacked him and stole his valuables. He stated that he identified the Appellant herein as the assailant by the security light and called out his name, Onesmus. He stated that at that moment, after calling out his name, the Appellant turned and struck him severally with a rungu.
14. Further, PW2 testified that he went to the scene after hearing screams and found the Complainant bleeding from the face. He stated that the Appellant, his relative and someone known to him went back to where the Complainant was, hit the Complainant, who then fell down, and that he (PW2) rushed to get help and took the complainant to the hospital.
15. The Complainant had sufficient time and proximity to the assailant during the incident. The evidence is that the scene was near a kiosk that has sufficient lighting from the security lights. PW1 and PW2 already knew the Appellant, which makes the identification more reliable than if they were strangers. The identification of the Appellant as the assailant remained consistent from the first statement to the police through to the investigations, arrest, and their testimony in court, and I thus rule out any possibility of mistaken identity.
16. From the medical evidence adduced, the Complainant sustained a deep cut wound to the forehead, which was actively bleeding at the time of examination. Plaster of Paris was applied to his right lower limb at the knee joint. A backslap was applied to the left upper limb at the radius/ulna aspect. The right hand was tender and swollen at the metacarpal bones. The cut wounds were stitched. The degree of harm was assessed as grievous harm.
17. According to the testimony of PW3, the arresting officer, the information available to him at the time of arrest was that the suspect had assaulted the Complainant. The treatment notes, as well as the P3 form, which was issued the same day the report was made at the police station, also indicate that the offence was an assault by a person known to the patient
18. The cross-examination of witnesses regarding the assault issue was also addressed. The investigations do not confirm the existence and loss of the valuables. The initial reports, as stated above, also referred to assault rather than robbery. There is insufficient evidence on the robbery. I am, however, persuaded that the Appellant caused grievous harm to the Complainant.
19. Section 179 of the Criminal Procedure Code provides as follows; -
“179. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.
20. The Application of the said Section requires that; -
i. The offence charged constituted several particulars.
ii. The proved combination of some only constitutes a minor offence.
21. In Robert Mutungi Muumbi v Republic 2015 eKLR the Court of Appeal states as follows; -
“As is apparently clear, section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an offence, even though he was not charged with that offence. The court contemplated by section 179 can be either the trial court or the appellate court.”
22. Black’s Law Dictionary 9 th Edition describes a cognate offence as;
“A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category.”
23. The offence of Robbery with Violence constitutes two ingredients found under Section 295 and 296 (2) respectively. The elements are: stealing and any of the following ingredients:
i. The offender is armed with any dangerous weapons or instrument; or;
ii. Is in company of one or more other person or persons or;
iii. Immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any personal violence to any person (emphasis mine).
24. Grievous Harm is described in Section 2 of the Penal Code as follows;
“Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health or which extends to permanent disfigurement or to any permanent or serious injury to any external and internal organ, membrane or sense.”
25. In Jeremiah Auma Odongo vs Republic [2021] eKLR, the Appellant was charged with the offence of Robbery with Violence and Malicious Damage to Property. The High Court upheld the trial Court’s decision on the first count, applying Section 179 of the Criminal Procedure Code , and convicting the accused of the offence of Grievous Harm.
26. The offence of Grievous Harm is cognate and lesser to that of Robbery with Violence.
27. In the present case I find that the evidence points to the lesser offence of Causing Grievous Harm contrary to Section 234 of the Penal Code . I find that the Appellant did not suffer any prejudice in the charge and case as was prosecuted before the trial Court.
28. I quash the conviction and set aside the sentence on the offence of Robbery with Violence and substitute the same with a conviction on the cognate offence of Causing Grievous Harm contrary to Section 234 of the Penal Code.
29. Section 234 of the Penal Code provides as follows:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”
30. The Appellant has been in custody since his arrest on 27 th April, 2020, which means he has been in custody for nearly six years as at the date of delivery of this judgment. I find that the time spent in custody is sufficient punishment for the offence of causing grievous harm. Therefore, this period in custody will be treated as the sentence. The Appellant is to be released unless he is otherwise lawfully held.
31. It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 06TH day of FEBRUARY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant - present
Ms. Mutua, ODPP for Respondent
MAKUENI CR. APPEAL E013 OF 2024 JUDGMENT2
1. The Appellant was charged with the offence of robbery with violence contrary to Section 295 as read together with Section 296 (2) of the Penal Code. The particulars of the charge are that on the 24 th December, 2019 at around 9.00 p.m. at Nthungoni Market, the Appellant robbed Peter Mwanza Munyao of his mobile phone make Techno Y2, his identity card, wallet, cash Kshs.1,000/= all valued at Kshs 4,000/= and immediately after the time of such robbery used actual violence to the said Peter Mwanza Munyao.
2. The Appellant entered a plea of not guilty, and the matter proceeded to trial. The prosecution called five witnesses, and the Appellant was put on his defence, and he elected to remain silent.
3. At the close of the trial, the trial Court found the Appellant guilty and sentenced him to death.
4. Dissatisfied with the conviction and sentence, he lodged a petition of appeal raising the following grounds:
i. That the trial court convicted and sentenced the appellant notwithstanding that the prosecution did not prove the case beyond reasonable doubt;
ii. That the trial court convicted and sentenced the appellant notwithstanding that there were contradictions, inconsistencies, and a fabricated prosecution case;
iii. That the trial court convicted and sentenced the appellant despite the plausible defence, which the prosecution evidence did not displace;
iv. That the trial court convicted and sentenced the appellant notwithstanding that the ingredients of the offence had not been established.
5. The Appellant filed submissions. He argued that his conviction and sentence should be overturned on the grounds advanced on appeal and that he did not receive a fair trial. He stated that he had no legal representation and that his sentence of death was excessively severe.
6. The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The Respondent maintained that the trial Court acted within the bounds of the law and that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
Analysis and determination
7. The issues for determination are as follows;
i. Whether the appellant was afforded a fair trial;
ii. Whether the prosecution proved their case to the required threshold;
iii. Whether the sentence was appropriate.
8. It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. ( See Pandya vs. Republic (1957) EA 336 ).
9. I have examined the record and weighed in on the ground of appeal that the appellant was not granted legal representation. The right to legal representation in Kenya is a fundamental aspect of the right to a fair trial, guaranteed under Article 50 (2) of the Constitution of Kenya, 2010 . An accused person has a right to secure legal representation. From the wording of Article 50 (2) (h), the right to legal representation at the expense of the state is not absolute, as the Court must first satisfy itself that substantial injustice may result before it enforces the right to legal representation at the expense of the state. The Court believes that the learned magistrate, in not granting an order for state-paid legal consideration, did so with due consideration, and there is no reason for this Court to interfere with that exercise of discretion.
10. I have also reviewed the proceedings before the trial Court. The Appellant participated in the trial, and there are no procedural flaws that would lead this Court to conclude that the Appellant was not afforded a fair trial. The record indicates that the Appellant confirmed his readiness to proceed during the examination of the witness. Additionally, he was informed about the provisions of Section 211 of the Criminal Procedure Code and chose to remain silent.
Whether the prosecution proved their case to the required threshold;
11. In the case of Oluoch Vs Republic [1985] KLR the Court of Appeal stated:
“Robbery with violence is committed in any of the following circumstances:
a. The offender is armed with any dangerous and offensive weapon or instrument; or
b. The offender is in company with one or more person or persons; or
c. 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.”
12. And according to the case of Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007,
“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”
13. Drawing from the testimony of PW1 and PW2 , I am persuaded that an incident occurred on the fateful night. The Appellant said that the assailant attacked him and stole his valuables. He stated that he identified the Appellant herein as the assailant by the security light and called out his name, Onesmus. He stated that at that moment, after calling out his name, the Appellant turned and struck him severally with a rungu.
14. Further, PW2 testified that he went to the scene after hearing screams and found the Complainant bleeding from the face. He stated that the Appellant, his relative and someone known to him went back to where the Complainant was, hit the Complainant, who then fell down, and that he (PW2) rushed to get help and took the complainant to the hospital.
15. The Complainant had sufficient time and proximity to the assailant during the incident. The evidence is that the scene was near a kiosk that has sufficient lighting from the security lights. PW1 and PW2 already knew the Appellant, which makes the identification more reliable than if they were strangers. The identification of the Appellant as the assailant remained consistent from the first statement to the police through to the investigations, arrest, and their testimony in court, and I thus rule out any possibility of mistaken identity.
16. From the medical evidence adduced, the Complainant sustained a deep cut wound to the forehead, which was actively bleeding at the time of examination. Plaster of Paris was applied to his right lower limb at the knee joint. A backslap was applied to the left upper limb at the radius/ulna aspect. The right hand was tender and swollen at the metacarpal bones. The cut wounds were stitched. The degree of harm was assessed as grievous harm.
17. According to the testimony of PW3, the arresting officer, the information available to him at the time of arrest was that the suspect had assaulted the Complainant. The treatment notes, as well as the P3 form, which was issued the same day the report was made at the police station, also indicate that the offence was an assault by a person known to the patient
18. The cross-examination of witnesses regarding the assault issue was also addressed. The investigations do not confirm the existence and loss of the valuables. The initial reports, as stated above, also referred to assault rather than robbery. There is insufficient evidence on the robbery. I am, however, persuaded that the Appellant caused grievous harm to the Complainant.
19. Section 179 of the Criminal Procedure Code provides as follows; -
“179. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.
20. The Application of the said Section requires that; -
i. The offence charged constituted several particulars.
ii. The proved combination of some only constitutes a minor offence.
21. In Robert Mutungi Muumbi v Republic 2015 eKLR the Court of Appeal states as follows; -
“As is apparently clear, section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an offence, even though he was not charged with that offence. The court contemplated by section 179 can be either the trial court or the appellate court.”
22. Black’s Law Dictionary 9 th Edition describes a cognate offence as;
“A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category.”
23. The offence of Robbery with Violence constitutes two ingredients found under Section 295 and 296 (2) respectively. The elements are: stealing and any of the following ingredients:
i. The offender is armed with any dangerous weapons or instrument; or;
ii. Is in company of one or more other person or persons or;
iii. Immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any personal violence to any person (emphasis mine).
24. Grievous Harm is described in Section 2 of the Penal Code as follows;
“Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health or which extends to permanent disfigurement or to any permanent or serious injury to any external and internal organ, membrane or sense.”
25. In Jeremiah Auma Odongo vs Republic [2021] eKLR, the Appellant was charged with the offence of Robbery with Violence and Malicious Damage to Property. The High Court upheld the trial Court’s decision on the first count, applying Section 179 of the Criminal Procedure Code , and convicting the accused of the offence of Grievous Harm.
26. The offence of Grievous Harm is cognate and lesser to that of Robbery with Violence.
27. In the present case I find that the evidence points to the lesser offence of Causing Grievous Harm contrary to Section 234 of the Penal Code . I find that the Appellant did not suffer any prejudice in the charge and case as was prosecuted before the trial Court.
28. I quash the conviction and set aside the sentence on the offence of Robbery with Violence and substitute the same with a conviction on the cognate offence of Causing Grievous Harm contrary to Section 234 of the Penal Code.
29. Section 234 of the Penal Code provides as follows:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”
30. The Appellant has been in custody since his arrest on 27 th April, 2020, which means he has been in custody for nearly six years as at the date of delivery of this judgment. I find that the time spent in custody is sufficient punishment for the offence of causing grievous harm. Therefore, this period in custody will be treated as the sentence. The Appellant is to be released unless he is otherwise lawfully held.
31. It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 06TH day of FEBRUARY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant - present
Ms. Mutua, ODPP for Respondent
MAKUENI CR. APPEAL E013 OF 2024 JUDGMENT2