1. This is an appeal from the conviction and sentence meted out by the Hon. M. Okuche, Principal Magistrate in Nyeri CMCCRC No. E2364 of 2021 on 13.7.2022.
2. The Appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 3.08.2021, at about 1000hrs at Pembe Tatu estate in Nyeri Central Sub-County of Nyeri County, while armed with a pistol-like weapon, the appellant robbed Jamila Khahindi Wasike a house help to Rosemary Nyangithi Kibui a smart watch, perfume, HP desktop, four mobile phones, a CCTV system, three power extension cables, a blender, Philips iron box, Bluetooth earphones, two suit cases, TV stand, two toy cars, bunch of keys, bedside lamp and cash Kshs. 3,000, all valued at Kshs. 175,500, the property of Rosemary Nyangithi, and immediately before the time of the robbery, threatened to use personal violence against Jamila Khahindi Wasike.
3. Count 1 had an alternative charge of handling stolen goods contrary to Section 322(1) as read together with Section 322(2) of the Penal Code. The particulars are that on the 13.08.2021, at about 1400hours at Nyangarithi estate Nyeri County otherwise than in the course of stealing, the appellant dishonestly retained a perfume, four mobile phones, three power extension cables, a blender, Philips iron box, Bluetooth earphones, a suit case, TV stand, TV remote, a power bank, a bunch of keys, a bedside lamp, knowing or having reason to believe it to have been stolen or unlawfully obtained.
4. In Count II, the Appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 3.8.2021, at about 1000hrs at Pembe Tatu estate in Nyeri Central Sub-County within Nyeri County, while armed with a pistol-like weapon, the appellant robbed Anna Ngima Mwangi of a Samsung mobile valued at Kshs. 20,000 and immediately before the time of the robbery, threatened personal violence against Anna Ngima Mwangi.
5. The third count is where the Appellant was charged with possession of ammunition without a firearm certificate contrary to section 4(1) of the Firearms Act. The particulars of the offence were that on 13.8.2021, at about 1400 hours, at Nyangarithi estate in Central Sub-County within Nyeri County, he was found in possession of seventy rounds of ammunition without a firearm certificate, permit, or other lawful justification.
6. The fourth count is that of possession of an imitation firearm contrary to section 34(1) of the Firearms Act Cap. 114. The particulars are that on 13.08.2021, at about 1400hours at Nyangarithi Estate in Central Sub-County within Nyeri County, the appellant was found in possession of an imitation firearm with intent to commit a felony.
7. The Appellant was arrested on 16.8.2021. He was arraigned and entered a plea on 17.08.2021, pleading not guilty. The court heard the matter and, on 13.7.2022, found the Appellant guilty and convicted him on all 4 counts. The court sentenced him to twenty years' imprisonment for counts one and two. For counts three and four, he was sentenced to four years' imprisonment each. The sentences were to run concurrently.
8. The Appellant filed an undated Petition of Appeal on 25 th August 2022 and amended grounds of appeal on 26.03.2026 setting out the following grounds of appeal:
a. That the trial court erred in both law and in fact in overlooking the fact that there was no identification parade conducted, which was a fundamental requirement in criminal law.
b. The trial court erred in law and in fact in failing to consider the time spent in remand custody in accordance with section 333(2) of the CPC.
c. The trial court erred in law and in fact in disregarding the fact that no dusting took place on the gun allegedly recovered to prove that it belonged to the appellant.
d. The trial court erred in law and in fact in failing to note that the evidence adduced was full of inconsistencies and contradictions.
e. The trial court erred in law and in fact in failing to consider that there was no search warrant issued, hence infringing fundamental rights and freedoms of the appellant.
f. That the trial magistrate erred in law and in fact in failing to consider that the key witness did not testify before the court.
g. This Honourable Court be pleased to review the 30years that was imposed upon the appellant by the trial court pursuant to Article 50(2) of the Constitution.
h. This Honourable Court be pleased to consider another more lenient sentence that may be constituted in further consideration of the appellant's mitigation.
9. The Appellant contended that the trial court erred in law and fact by relying on evidence obtained without an identification parade, failing to consider the period spent in remand custody as required under section 333(2) of the Criminal Procedure Code, and disregarding the absence of forensic examination, including fingerprint dusting of the recovered firearm.
10. The Appellant further maintained that the prosecution evidence was riddled with inconsistencies and contradictions, that the alleged search was conducted without a search warrant in violation of his constitutional rights, and that the prosecution failed to call a key witness. Finally, the Appellant urges this Court to review the sentence of thirty years' imprisonment in light of Article 50(2) of the Constitution and to impose a more lenient sentence after considering his mitigation.
Evidence
11. PW1, Jamila Khaindi Wasike , testified that she was employed as a housemaid by PW3 and resided at Pembe Tatu. On the morning of 03.08.2021 , she prepared the children for school and accompanied PW3 before they left. They locked both the house and the main gate. She returned to the house at about 9.00 a.m. While cooking tea, she suddenly heard a voice coming from the direction of the toilet.
12. She stated that on turning, she saw a man on her left pointing a small black pistol at her. The man was wearing a black marvin and warned her that he would kill her if she screamed. He then escorted her to PW3's bedroom, ordered her to lie face down, and tied both her hands and legs. After some time, the assailant brought PW2 into the bedroom, where PW2 was similarly tied on the hands and legs.
13. PW1 further testified that the person took around two hours in the house. He stole several items from the house. He removed the marvin as he was leaving and told them that he didn’t have any problem with them. She saw the person very well. She identified the accused person in court. The accused person, while leaving the house, picked up the house keys and locked the door from outside. He left carrying a black bag.
14. They untied themselves and got out of the house through the back door, borrowed a phone from their neighbour and called PW3, who came together with police officers. On 13.08.2021, she went to the police station where she was shown the accused person, and she identified him. She was also shown various items, which she identified as those stolen from their house, including her phone.
15. On cross examination, PW1 testified that she recorded her statement on 13.08.2021. She saw the person. The room was lit through the window. She also saw the accused person at the police station. She identified the accused person through the voice.
16. PW1 stated during cross-examination that she recorded her statement on 13.08.2021. She maintained that she saw the assailant, explaining that the room was lit by natural light entering through the window, which enabled her to observe him. She further testified that she later saw the accused at the police station and also identified him by his voice.
17. PW2 was Ann Ngima Mwangi. She had gone to visit her cousin at Pembe Tatu. On 03.08. 2021 at 10:00 a.m., she was in bed. When she woke, she found a person in the house wearing dark green overalls. He was in the kitchen and also wearing a balaclava. The eyes and mouth were exposed. The person was armed with a pistol, which he pointed at her. He took her to the master bedroom, where she found PW1 tied at the hands and legs. He forced PW2 to lie down and tied her hands and legs. When she woke, she found her Samsung phone missing. The Appellant picked several items from the house and packed them into a suitcase. When he left the house, he removed the balaclava so that PW2 could see his face.
18. PW2 untied herself and later PWI. They went to the neighbour’s house, borrowed a phone, and called PW3, who came with the police. On 13.08.2021, they were called to Nyeri Police Station. She identified the Appellant at the police station. She also identified several items which were recovered.
19. PW3, Rosemary Nangithi gave evidence that she lives in Pembe Tatu with PW1 and PW2. On 3.08.2021, she received a call from PW2 that they had been attacked in the house and robbed of several items. Together with her husband, she rushed home and also called the police. She found several items missing. PW1 and PW2 narrated to her what had happened. The police came to the scene around the same time and took inventory of the items stolen. One of the items stolen was a CCTV camera which is connected to her phone. When the camera is switched on, it sends an alert to her.
20. On 13.08.2021, the CCTV sent her live images showing a person at a shop. She called PW9 and shared the images with him. PW9 identified the person and informed her that the person was at Prestige Plaza. She left the police to conduct their investigation. The police later called her to the station, where she went together with PW2. The police brought the Appellant, and he was positively identified by PW2 as the person who robbed them. PW3, accompanied by the police and the Appellant, went to the Appellant’s house at Ngangarithi Estate. She identified her properties, which were found in the house.
21. PW4 was Charles Kimathi. He is a CCTV Technician operating a shop at Prestige Plaza. On 11.8.2021, he was in the office when a male customer brought a CCTV camera for confirmation whether it was operating or not. He connected it to the internet and found that it was connected to an account. He asked the person to give him the account number, but he never gave him the credentials so that he could unbind the account. On 13.8.2021, while at the office, a certain person went there and made enquiries about the CCTV camera. He testified that he accessed and viewed the CCTV footage remotely through the internet, having previously connected the CCTV system to the internet. The footage included images of the suspect, after which he explained the history and operation of the CCTV system. They subsequently contacted the Appellant, and when he responded and appeared, he was arrested.
22. PW5, Simon Mugambi, testified that he knew the Appellant. He was the Appellant’s tenant at Ngangarithi for six months, paying monthly rent of Kshs. 2,500, and occupied house No. A1. On 13.8.2021, he was called by his caretaker, who told him that police officers had invaded his premises. They arrested the Appellant and were taking items from his house. He went to the police station the following day and identified the Appellant. The police showed him some electronics and ammunition recovered from the Appellant’s house.
23. PW6, PC Oscar Kosgei, testified that on 3.8.2021 he was on patrol when he was asked by OCS to rush to Pembe Tatu estate to assist a member of the public who had been robbed. He arrived at the house and found the gate wide open. Two ladies emerged from a room in the house. He introduced himself as a police officer. The two ladies narrated the incident to him. They combed the area but made no recovery. On 13.8.2021, using CCTV footage brought to the station, they traced the person operating the CCTV at Prestige Plaza. That person called the appellant, who was arrested. The appellant took them to Ngangarithi estate; he showed them his house and conducted a search. They recovered the items listed in the chargesheet. They took inventory of the recoveries, arrested the appellant and charged him.
24. PW7 was PC Stephen Njeru. He stated that on 13.8.2021, together with his colleagues, they were called by the OCS. He showed them CCTV footage from a shop at Prestige Plaza. They went to the shop and found PW3. He told them that the camera had been taken there by a person known to him. He called the Appellant, who came, and they arrested him. After interrogation, the Appellant took them to his house. In the house, they made recoveries belonging to the complainant. They also recovered 70 rounds of ammunition, a homemade gun, a black balaclava and green overalls.
25. PW8 is the firearm examiner attached to the Ballistics Department. On 20th September 2021, while at the laboratory, he received from PC Asimith Josephine the following exhibits: A1 to A70 – seventy rounds of ammunition, and B – imitation firearm. He found that A1 to A70 were 9x19mm calibre. They were suitable for use in firearms such as a Browning pistol, a Taurus pistol, a Beretta pistol, amongst others. He found that the rounds were complete in their component parts. He also found that the primer and propellant power tests were positive. He formed the opinion that exhibits A1 to A70 were all live, capable of being fired, and were ammunition.
26. He also examined exhibit B. It was an imitation firearm. The parts are metallic in nature. The imitation cannot accommodate ammunition, and it cannot fire any ammunition. However, the same can be mistaken for a conventional firearm. He produced his report as an exhibit.
27. PW9 was Dennis Obura, the investigating officer. He testified that on 3.8.2021, it was reported that a lone robber, his face covered by a black balaclava and armed with what appeared to be a pistol, had entered a house. He visited the scene and found two ladies in the house. He recorded their statements and then commenced investigations. On 13.08.2021, they came across a lead. The stolen CCTV camera transmitted images to the owner's telephone. They went to the shop and found PW4, the technician, who explained how he obtained the camera. He called the Appellant, who was arrested. Thereafter, the Appellant led them to his house, where they found items which the complainant identified as hers. He prepared an inventory of the recovered items. They called PW5, who confirmed that the Appellant was his tenant. PW9 later sent the firearm and the ammunition to the firearm examiner for analysis.
28. On cross-examination, PW9 stated that the report was made by one Jamila. He further testified that in breaking the Appellant’s house, he was with PC Oscar, PC Gitonga, PC Njagi and Rosemary. He stated that the Appellant signed the inventory of the recoveries.
29. On 22.03.2022, the trial court found that the prosecution had established a prima facie case against the Appellant and that he had a case to answer. The Appellant was placed on his defence after complying with section 211 of the Criminal Procedure Code.
30. DW1 was the Appellant. He was a second-hand cloth seller. In August 2021, he was called to Prestige Plaza by PW6. He went to Prestige Plaza and met PW6, who introduced himself as a police officer. The shop where they met specialized in CCTV camera repair. PW6 asked him whether he knew Peter’s home, and he answered in the affirmative. At the shop, they met Simon, who told them that Peter was not present. From there, they went to Nyeri Police Station. He was asked whether he knew Mwangi, and he confirmed he was his customer. He took the police to his house at Ngangarithi. The police made no recoveries. They then took him back to the police station. The officer told him that a CCTV had been stolen the previous night. The following day, the police told him that the items at the police station had been recovered from his house.
Submissions
31. The Appellant filed submissions on 27 th March 2026 by which it was submitted that he was convicted for the charge of Robbery with violence contrary to section 296(2) of the CPC. The trial court, in its discretion, imposed thirty years' imprisonment, which, in the instant submissions, is appealed for consideration, being reviewed to another lenient one that may accrue to the appellant pursuant to article 50(2)(p) of the Constitution. He submitted that the sentence imposed came after the learned magistrate took into consideration mitigation factors of the appellant, as recorded during trial, that:
“the accused person is a young man with a young family, with one child. I seek leniency.”
32. The appellant relied on the case of S v Mchunu and Another (AR24/11) [2012] ZAKZPHC 6, which is a decision of the High Court of South Africa sitting at Pietermaritzburg, KwaZulu-Natal High Court, where it was indicated that issues of sentencing are ones that vest a discretion in the trial court. He urged the court to find what the court considers a fair and appropriate sentence should be. he posited that the purpose of sentence was set out in S v Scott-Crossley (677/06) [2007] ZASCA 127; 2008 (1) SA 404 (SCA), where the Supreme Court of Appeal of South Africa [Mthiyane, Cloete et Ponnan JJA] held as follows:
[35] Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. Against that must be weighed the appellant’s prospects of reformation and rehabilitation, which appear to be good. It is true that it is in the interests of justice that crime should be punished. However, excessive punishment serves neither the interests of justice nor those of society.
33. The Appellant further submitted that the sentence imposed could be described as one that sacrificed him on the altar of deterrence. He prayed that this court review the sentence of the Appellant in light of judicial sentencing policy guidelines that reflect rehabilitation and reformation. He was a first offender, remorseful and suitable for rehabilitation.
34. The Respondent filed submissions on 25th March 2026 by which the appeal was opposed in its entirety. The Respondent cited the case of Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR) , where AC Mrima J elucidated the offence of robbery with violence as follows;
21. Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.
22. On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -
(a) The offender is armed with any dangerous or offensive weapon or instrument, or
(b) The offender is in the company of one or more other person or persons, or
(c) The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.
35. The Respondent submitted the offence of robbery with violence is committed when robbery is proved and further if one of the following three ingredients are established; the offender is armed with any dangerous or offensive weapon or instrument; the offender is in company with one or more other person or persons; or the offender at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person.
36. It is their submissions that from the evidence of PW1, PW2 and PW3 a robbery happened and at that time the appellant was armed with a pistol-like weapon. That the complainants (PW2 and PW3) were indeed robbed of their items as captured in the charge sheet and as also stated during trial.
37. On conviction and sentence, the Respondent submitted that the trial court was lenient enough to sentence the appellant to serve twenty years imprisonment only for counts one and two and the sentence to run concurrently for counts three and four. The appellant is therefore not entitled to review of sentence as the twenty-year sentence is commensurate with the offence; in any event, the appellant is not serving an excessive sentence.
Analysis
38. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
39. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36 , where the East Africa Court of Appeal stated the following on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
40. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
41. Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
42. 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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
That degree is well settled. 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 so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
43. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
44. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
45. I have considered the Trial Court’s proceedings, the Petition of Appeal, Amended Grounds of Appeal, the Appellant’s submissions and the Respondent’s submissions and I identify issues for determination as follows;
a. Whether the ingredients of robbery with violence were established;
b. Whether there was sufficient evidence linking the Appellant to the offences;
c. Whether the Appellant’s defence was properly considered; and
d. Whether the sentence imposed was excessive or harsh
46. On the first issue, the Appellant was convicted of two counts of robbery with violence. The starting point is the legal provision that provides the ingredients of the offence. The offence of robbery with violence is set out in section 296(2) of the Penal Code. The offence of robbery is set out in section 295 of the Penal Code, while that of robbery with violence is set out in section 296(2) of the Penal Code. In considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms:
“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.”
47. To prove the offence of robbery with violence, the element of stealing must be established, together with one or more of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. Regard should be had to the elements of robbery with violence as enunciated in the case of Oluoch & another v Republic [2022] KECA 1260 (KLR), where the Court of Appeal stated as follows:
For the prosecution to sustain a conviction
[...truncated]
2. The Appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 3.08.2021, at about 1000hrs at Pembe Tatu estate in Nyeri Central Sub-County of Nyeri County, while armed with a pistol-like weapon, the appellant robbed Jamila Khahindi Wasike a house help to Rosemary Nyangithi Kibui a smart watch, perfume, HP desktop, four mobile phones, a CCTV system, three power extension cables, a blender, Philips iron box, Bluetooth earphones, two suit cases, TV stand, two toy cars, bunch of keys, bedside lamp and cash Kshs. 3,000, all valued at Kshs. 175,500, the property of Rosemary Nyangithi, and immediately before the time of the robbery, threatened to use personal violence against Jamila Khahindi Wasike.
3. Count 1 had an alternative charge of handling stolen goods contrary to Section 322(1) as read together with Section 322(2) of the Penal Code. The particulars are that on the 13.08.2021, at about 1400hours at Nyangarithi estate Nyeri County otherwise than in the course of stealing, the appellant dishonestly retained a perfume, four mobile phones, three power extension cables, a blender, Philips iron box, Bluetooth earphones, a suit case, TV stand, TV remote, a power bank, a bunch of keys, a bedside lamp, knowing or having reason to believe it to have been stolen or unlawfully obtained.
4. In Count II, the Appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 3.8.2021, at about 1000hrs at Pembe Tatu estate in Nyeri Central Sub-County within Nyeri County, while armed with a pistol-like weapon, the appellant robbed Anna Ngima Mwangi of a Samsung mobile valued at Kshs. 20,000 and immediately before the time of the robbery, threatened personal violence against Anna Ngima Mwangi.
5. The third count is where the Appellant was charged with possession of ammunition without a firearm certificate contrary to section 4(1) of the Firearms Act. The particulars of the offence were that on 13.8.2021, at about 1400 hours, at Nyangarithi estate in Central Sub-County within Nyeri County, he was found in possession of seventy rounds of ammunition without a firearm certificate, permit, or other lawful justification.
6. The fourth count is that of possession of an imitation firearm contrary to section 34(1) of the Firearms Act Cap. 114. The particulars are that on 13.08.2021, at about 1400hours at Nyangarithi Estate in Central Sub-County within Nyeri County, the appellant was found in possession of an imitation firearm with intent to commit a felony.
7. The Appellant was arrested on 16.8.2021. He was arraigned and entered a plea on 17.08.2021, pleading not guilty. The court heard the matter and, on 13.7.2022, found the Appellant guilty and convicted him on all 4 counts. The court sentenced him to twenty years' imprisonment for counts one and two. For counts three and four, he was sentenced to four years' imprisonment each. The sentences were to run concurrently.
8. The Appellant filed an undated Petition of Appeal on 25 th August 2022 and amended grounds of appeal on 26.03.2026 setting out the following grounds of appeal:
a. That the trial court erred in both law and in fact in overlooking the fact that there was no identification parade conducted, which was a fundamental requirement in criminal law.
b. The trial court erred in law and in fact in failing to consider the time spent in remand custody in accordance with section 333(2) of the CPC.
c. The trial court erred in law and in fact in disregarding the fact that no dusting took place on the gun allegedly recovered to prove that it belonged to the appellant.
d. The trial court erred in law and in fact in failing to note that the evidence adduced was full of inconsistencies and contradictions.
e. The trial court erred in law and in fact in failing to consider that there was no search warrant issued, hence infringing fundamental rights and freedoms of the appellant.
f. That the trial magistrate erred in law and in fact in failing to consider that the key witness did not testify before the court.
g. This Honourable Court be pleased to review the 30years that was imposed upon the appellant by the trial court pursuant to Article 50(2) of the Constitution.
h. This Honourable Court be pleased to consider another more lenient sentence that may be constituted in further consideration of the appellant's mitigation.
9. The Appellant contended that the trial court erred in law and fact by relying on evidence obtained without an identification parade, failing to consider the period spent in remand custody as required under section 333(2) of the Criminal Procedure Code, and disregarding the absence of forensic examination, including fingerprint dusting of the recovered firearm.
10. The Appellant further maintained that the prosecution evidence was riddled with inconsistencies and contradictions, that the alleged search was conducted without a search warrant in violation of his constitutional rights, and that the prosecution failed to call a key witness. Finally, the Appellant urges this Court to review the sentence of thirty years' imprisonment in light of Article 50(2) of the Constitution and to impose a more lenient sentence after considering his mitigation.
Evidence
11. PW1, Jamila Khaindi Wasike , testified that she was employed as a housemaid by PW3 and resided at Pembe Tatu. On the morning of 03.08.2021 , she prepared the children for school and accompanied PW3 before they left. They locked both the house and the main gate. She returned to the house at about 9.00 a.m. While cooking tea, she suddenly heard a voice coming from the direction of the toilet.
12. She stated that on turning, she saw a man on her left pointing a small black pistol at her. The man was wearing a black marvin and warned her that he would kill her if she screamed. He then escorted her to PW3's bedroom, ordered her to lie face down, and tied both her hands and legs. After some time, the assailant brought PW2 into the bedroom, where PW2 was similarly tied on the hands and legs.
13. PW1 further testified that the person took around two hours in the house. He stole several items from the house. He removed the marvin as he was leaving and told them that he didn’t have any problem with them. She saw the person very well. She identified the accused person in court. The accused person, while leaving the house, picked up the house keys and locked the door from outside. He left carrying a black bag.
14. They untied themselves and got out of the house through the back door, borrowed a phone from their neighbour and called PW3, who came together with police officers. On 13.08.2021, she went to the police station where she was shown the accused person, and she identified him. She was also shown various items, which she identified as those stolen from their house, including her phone.
15. On cross examination, PW1 testified that she recorded her statement on 13.08.2021. She saw the person. The room was lit through the window. She also saw the accused person at the police station. She identified the accused person through the voice.
16. PW1 stated during cross-examination that she recorded her statement on 13.08.2021. She maintained that she saw the assailant, explaining that the room was lit by natural light entering through the window, which enabled her to observe him. She further testified that she later saw the accused at the police station and also identified him by his voice.
17. PW2 was Ann Ngima Mwangi. She had gone to visit her cousin at Pembe Tatu. On 03.08. 2021 at 10:00 a.m., she was in bed. When she woke, she found a person in the house wearing dark green overalls. He was in the kitchen and also wearing a balaclava. The eyes and mouth were exposed. The person was armed with a pistol, which he pointed at her. He took her to the master bedroom, where she found PW1 tied at the hands and legs. He forced PW2 to lie down and tied her hands and legs. When she woke, she found her Samsung phone missing. The Appellant picked several items from the house and packed them into a suitcase. When he left the house, he removed the balaclava so that PW2 could see his face.
18. PW2 untied herself and later PWI. They went to the neighbour’s house, borrowed a phone, and called PW3, who came with the police. On 13.08.2021, they were called to Nyeri Police Station. She identified the Appellant at the police station. She also identified several items which were recovered.
19. PW3, Rosemary Nangithi gave evidence that she lives in Pembe Tatu with PW1 and PW2. On 3.08.2021, she received a call from PW2 that they had been attacked in the house and robbed of several items. Together with her husband, she rushed home and also called the police. She found several items missing. PW1 and PW2 narrated to her what had happened. The police came to the scene around the same time and took inventory of the items stolen. One of the items stolen was a CCTV camera which is connected to her phone. When the camera is switched on, it sends an alert to her.
20. On 13.08.2021, the CCTV sent her live images showing a person at a shop. She called PW9 and shared the images with him. PW9 identified the person and informed her that the person was at Prestige Plaza. She left the police to conduct their investigation. The police later called her to the station, where she went together with PW2. The police brought the Appellant, and he was positively identified by PW2 as the person who robbed them. PW3, accompanied by the police and the Appellant, went to the Appellant’s house at Ngangarithi Estate. She identified her properties, which were found in the house.
21. PW4 was Charles Kimathi. He is a CCTV Technician operating a shop at Prestige Plaza. On 11.8.2021, he was in the office when a male customer brought a CCTV camera for confirmation whether it was operating or not. He connected it to the internet and found that it was connected to an account. He asked the person to give him the account number, but he never gave him the credentials so that he could unbind the account. On 13.8.2021, while at the office, a certain person went there and made enquiries about the CCTV camera. He testified that he accessed and viewed the CCTV footage remotely through the internet, having previously connected the CCTV system to the internet. The footage included images of the suspect, after which he explained the history and operation of the CCTV system. They subsequently contacted the Appellant, and when he responded and appeared, he was arrested.
22. PW5, Simon Mugambi, testified that he knew the Appellant. He was the Appellant’s tenant at Ngangarithi for six months, paying monthly rent of Kshs. 2,500, and occupied house No. A1. On 13.8.2021, he was called by his caretaker, who told him that police officers had invaded his premises. They arrested the Appellant and were taking items from his house. He went to the police station the following day and identified the Appellant. The police showed him some electronics and ammunition recovered from the Appellant’s house.
23. PW6, PC Oscar Kosgei, testified that on 3.8.2021 he was on patrol when he was asked by OCS to rush to Pembe Tatu estate to assist a member of the public who had been robbed. He arrived at the house and found the gate wide open. Two ladies emerged from a room in the house. He introduced himself as a police officer. The two ladies narrated the incident to him. They combed the area but made no recovery. On 13.8.2021, using CCTV footage brought to the station, they traced the person operating the CCTV at Prestige Plaza. That person called the appellant, who was arrested. The appellant took them to Ngangarithi estate; he showed them his house and conducted a search. They recovered the items listed in the chargesheet. They took inventory of the recoveries, arrested the appellant and charged him.
24. PW7 was PC Stephen Njeru. He stated that on 13.8.2021, together with his colleagues, they were called by the OCS. He showed them CCTV footage from a shop at Prestige Plaza. They went to the shop and found PW3. He told them that the camera had been taken there by a person known to him. He called the Appellant, who came, and they arrested him. After interrogation, the Appellant took them to his house. In the house, they made recoveries belonging to the complainant. They also recovered 70 rounds of ammunition, a homemade gun, a black balaclava and green overalls.
25. PW8 is the firearm examiner attached to the Ballistics Department. On 20th September 2021, while at the laboratory, he received from PC Asimith Josephine the following exhibits: A1 to A70 – seventy rounds of ammunition, and B – imitation firearm. He found that A1 to A70 were 9x19mm calibre. They were suitable for use in firearms such as a Browning pistol, a Taurus pistol, a Beretta pistol, amongst others. He found that the rounds were complete in their component parts. He also found that the primer and propellant power tests were positive. He formed the opinion that exhibits A1 to A70 were all live, capable of being fired, and were ammunition.
26. He also examined exhibit B. It was an imitation firearm. The parts are metallic in nature. The imitation cannot accommodate ammunition, and it cannot fire any ammunition. However, the same can be mistaken for a conventional firearm. He produced his report as an exhibit.
27. PW9 was Dennis Obura, the investigating officer. He testified that on 3.8.2021, it was reported that a lone robber, his face covered by a black balaclava and armed with what appeared to be a pistol, had entered a house. He visited the scene and found two ladies in the house. He recorded their statements and then commenced investigations. On 13.08.2021, they came across a lead. The stolen CCTV camera transmitted images to the owner's telephone. They went to the shop and found PW4, the technician, who explained how he obtained the camera. He called the Appellant, who was arrested. Thereafter, the Appellant led them to his house, where they found items which the complainant identified as hers. He prepared an inventory of the recovered items. They called PW5, who confirmed that the Appellant was his tenant. PW9 later sent the firearm and the ammunition to the firearm examiner for analysis.
28. On cross-examination, PW9 stated that the report was made by one Jamila. He further testified that in breaking the Appellant’s house, he was with PC Oscar, PC Gitonga, PC Njagi and Rosemary. He stated that the Appellant signed the inventory of the recoveries.
29. On 22.03.2022, the trial court found that the prosecution had established a prima facie case against the Appellant and that he had a case to answer. The Appellant was placed on his defence after complying with section 211 of the Criminal Procedure Code.
30. DW1 was the Appellant. He was a second-hand cloth seller. In August 2021, he was called to Prestige Plaza by PW6. He went to Prestige Plaza and met PW6, who introduced himself as a police officer. The shop where they met specialized in CCTV camera repair. PW6 asked him whether he knew Peter’s home, and he answered in the affirmative. At the shop, they met Simon, who told them that Peter was not present. From there, they went to Nyeri Police Station. He was asked whether he knew Mwangi, and he confirmed he was his customer. He took the police to his house at Ngangarithi. The police made no recoveries. They then took him back to the police station. The officer told him that a CCTV had been stolen the previous night. The following day, the police told him that the items at the police station had been recovered from his house.
Submissions
31. The Appellant filed submissions on 27 th March 2026 by which it was submitted that he was convicted for the charge of Robbery with violence contrary to section 296(2) of the CPC. The trial court, in its discretion, imposed thirty years' imprisonment, which, in the instant submissions, is appealed for consideration, being reviewed to another lenient one that may accrue to the appellant pursuant to article 50(2)(p) of the Constitution. He submitted that the sentence imposed came after the learned magistrate took into consideration mitigation factors of the appellant, as recorded during trial, that:
“the accused person is a young man with a young family, with one child. I seek leniency.”
32. The appellant relied on the case of S v Mchunu and Another (AR24/11) [2012] ZAKZPHC 6, which is a decision of the High Court of South Africa sitting at Pietermaritzburg, KwaZulu-Natal High Court, where it was indicated that issues of sentencing are ones that vest a discretion in the trial court. He urged the court to find what the court considers a fair and appropriate sentence should be. he posited that the purpose of sentence was set out in S v Scott-Crossley (677/06) [2007] ZASCA 127; 2008 (1) SA 404 (SCA), where the Supreme Court of Appeal of South Africa [Mthiyane, Cloete et Ponnan JJA] held as follows:
[35] Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. Against that must be weighed the appellant’s prospects of reformation and rehabilitation, which appear to be good. It is true that it is in the interests of justice that crime should be punished. However, excessive punishment serves neither the interests of justice nor those of society.
33. The Appellant further submitted that the sentence imposed could be described as one that sacrificed him on the altar of deterrence. He prayed that this court review the sentence of the Appellant in light of judicial sentencing policy guidelines that reflect rehabilitation and reformation. He was a first offender, remorseful and suitable for rehabilitation.
34. The Respondent filed submissions on 25th March 2026 by which the appeal was opposed in its entirety. The Respondent cited the case of Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR) , where AC Mrima J elucidated the offence of robbery with violence as follows;
21. Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.
22. On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -
(a) The offender is armed with any dangerous or offensive weapon or instrument, or
(b) The offender is in the company of one or more other person or persons, or
(c) The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.
35. The Respondent submitted the offence of robbery with violence is committed when robbery is proved and further if one of the following three ingredients are established; the offender is armed with any dangerous or offensive weapon or instrument; the offender is in company with one or more other person or persons; or the offender at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person.
36. It is their submissions that from the evidence of PW1, PW2 and PW3 a robbery happened and at that time the appellant was armed with a pistol-like weapon. That the complainants (PW2 and PW3) were indeed robbed of their items as captured in the charge sheet and as also stated during trial.
37. On conviction and sentence, the Respondent submitted that the trial court was lenient enough to sentence the appellant to serve twenty years imprisonment only for counts one and two and the sentence to run concurrently for counts three and four. The appellant is therefore not entitled to review of sentence as the twenty-year sentence is commensurate with the offence; in any event, the appellant is not serving an excessive sentence.
Analysis
38. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
39. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36 , where the East Africa Court of Appeal stated the following on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
40. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
41. Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
42. 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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
That degree is well settled. 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 so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
43. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
44. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
45. I have considered the Trial Court’s proceedings, the Petition of Appeal, Amended Grounds of Appeal, the Appellant’s submissions and the Respondent’s submissions and I identify issues for determination as follows;
a. Whether the ingredients of robbery with violence were established;
b. Whether there was sufficient evidence linking the Appellant to the offences;
c. Whether the Appellant’s defence was properly considered; and
d. Whether the sentence imposed was excessive or harsh
46. On the first issue, the Appellant was convicted of two counts of robbery with violence. The starting point is the legal provision that provides the ingredients of the offence. The offence of robbery with violence is set out in section 296(2) of the Penal Code. The offence of robbery is set out in section 295 of the Penal Code, while that of robbery with violence is set out in section 296(2) of the Penal Code. In considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms:
“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.”
47. To prove the offence of robbery with violence, the element of stealing must be established, together with one or more of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. Regard should be had to the elements of robbery with violence as enunciated in the case of Oluoch & another v Republic [2022] KECA 1260 (KLR), where the Court of Appeal stated as follows:
For the prosecution to sustain a conviction
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