1. The Appellant, Peter Mutinda, was charged before the trial court with the offence of attempted robbery with violence contrary to Section 297(2) of the Penal Code. The particulars of the charge were that on 19th February 2023 at about 8.00 p.m., at Mabulini area, Kilonzo Sub-Location, the Appellant, while armed with a panga, attempted to rob the complainant of her property and, at or immediately before or immediately after the time of such attempted robbery, threatened to use actual violence against her.
2. The prosecution called five witnesses in support of its case. PW1, Kennedy Kioko, a Senior Clinical Officer at Kitui County Referral Hospital, testified that his colleague, Karen Makau, had examined the complainant but was unavailable to testify as she was away pursuing further studies. He produced the complainant’s P3 form dated 20th February 2023, which was marked as Exh. 1. The P3 form showed that the complainant had injuries on the neck, with complaints of neck pain and hoarseness of voice. The injuries were approximately 16 hours old and were caused by a blunt object. The degree of injury was assessed as harm.
3. PW2, Elizabeth Kasili, a farmer from Kyanika Location, Kilonzo Sub-location, testified that on 19th February 2023 at about 8.00 p.m., she was closing her kiosk near her home when the Appellant, whom she knew as her neighbour, entered through the gate and approached the rear door. He asked whether she had beans, held her by the neck and covered her mouth. He then drew a panga and attempted to cut her. A struggle ensued, during which she tried to raise an alarm, prompting the Appellant to release her and flee. The complainant raised an alarm and her children came from the house. She stated that she had seen the Appellant clearly under the security lights in the compound. She reported the matter at Nzambani Police Station and was taken to Kitui General Hospital the following day, where she received treatment and a P3 form was filled. She stated that she had no grudge against the Appellant and that they had been good neighbours. She denied that she owed the Appellant Kshs. 1000/-.
4. PW3, Joseph Mbisi, a farmer from Matholeni, testified that on 19th February 2023 at about 8.00 p.m., he was at home when he heard screams from the house of Elizabeth Kasili, his neighbour. He went to the house and found several people there. The complainant stated that she had been attacked and that Peter Mutinda had attempted to rob her. The Appellant was not at the scene. They searched for him without success but he was subsequently arrested.
5. PW4, John Kioko James, a mason from Kitui East Ngengi village, testified that on 19th February 2023 at about 8.00 p.m., he heard a woman screaming and went to the scene. He found his neighbour, Mama Daudi, who informed him that she had been attacked and that Peter Mutinda had attempted to rob her. PW4 did not see the person who had attacked the complainant. He participated in the search for the attacker, who was not found at the scene. A panga and a pair of slippers were recovered and produced in evidence as MFI 2 and MFI 3 respectively. PW4 stated that he knew the Appellant as his neighbour and had no grudge against him.
6. PW5, No. 11089 PC Joel Lelyangu of Nzambani Police Station, was the investigating officer. He testified that on 19th February 2023 at about 8.10 p.m., he received information from the OCS concerning a robbery at Mabulini-Kilonzo Sub-location and proceeded to the scene. He recovered a panga and a pair of slippers which had been left at the scene and took them to the police station. At about 9.00 p.m., the Appellant arrived at the station without shoes and stated that people from Kilonzo wanted to kill him. He identified himself as Peter Mutinda from Kilonzo. PW5 summoned the complainant, who identified him as her attacker. He thereafter arrested and charged him.
7. The Appellant, Peter Mutinda, gave sworn evidence in his defence. He testified that on 19th February 2023 at about 7.30 p.m., while on his way home, he went to the complainant’s premises to ask for Kshs.1,000 which she owed him for work he had done for her. When he asked for the money, the complainant told him to leave or she would scream. She then raised an alarm, causing him to leave the premises and proceed to Nzambani Police Station to report the incident. He was subsequently informed that the complainant had also made a report, was arrested and charged. He denied having attempted to rob or assault her and maintained that the case was fabricated. In cross-examination, the Appellant explained that the complainant had initially owed him Kshs.3,000, paid Kshs.2,000, and remained indebted to him in the sum of Kshs.1,000. He stated that there was no written agreement for the work. He called no witnesses and closed his case.
8. Upon conclusion of the trial, the learned trial magistrate found the Appellant guilty, convicted him of the offence of attempted robbery with violence and, on 6th November 2024, sentenced him to death.
9. The Appellant was aggrieved by the conviction and sentence and he filed this appeal on the following grounds of appeal:
1) That the learned trial magistrate erred in law and fact by conducting the trial in a manner that was prejudicial to the Appellant.
2) That the learned trial magistrate erred in law and fact by admitting evidence irregularly.
3) That the learned trial magistrate erred in law and fact by overlooking vital evidence favourable to the Appellant while arriving at the conviction.
4) That the learned trial magistrate erred in law and fact by failing to properly evaluate the weight of the evidence connecting the Appellant to the offence before convicting him.
5) That the learned trial magistrate erred in law and fact by relying on corroborative evidence from the prosecution witnesses.
6) That the learned trial magistrate erred in law and fact by rejecting the Appellant’s plausible defence, which was consistent with the circumstances at the scene of the alleged offence.
7) That the learned trial magistrate erred in law by imposing a death sentence which the Appellant contended was severe, illegal and unconstitutional.
10. The Court directed that the appeal be canvassed by way of written submissions. The Appellant filed submissions dated 27th August 2026, in which he challenged the manner in which the trial was conducted, the admission and evaluation of the prosecution evidence, the failure to consider evidence favourable to the defence and the rejection of his defence. He further contended that the prosecution had not sufficiently connected him to the offence and challenged the legality and severity of the death sentence imposed by the trial court. The Respondent indicated that it would file submissions but did not do so.
11. This being a first appeal, this Court is obligated to re-evaluate the evidence adduced before the trial court afresh, analyse it, and arrive at its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and making due allowance for that disadvantage. The Court must nonetheless subject the entirety of the evidence on record to a fresh and exhaustive scrutiny, and satisfy itself as to whether the findings and conclusions reached by the trial court can be sustained on that evidence. This duty was authoritatively stated in Okeno v Republic [1972] EA 32, and has since been consistently applied and reaffirmed in numerous decisions of the superior courts, including Selle v Associated Motor Boat Co. [1968] EA 123, where it was held that an appellate court will not ordinarily interfere with a finding of fact by the trial court unless such finding was based on no evidence, or on a misapprehension of the evidence, or the trial court is shown demonstrably to have acted on wrong principles in reaching its findings.
12. From the grounds of appeal, the evidence on record and the submissions filed by the Appellant, the following issues arise for determination:
1) Whether the prosecution proved all the ingredients of the offence of attempted robbery with violence beyond reasonable doubt.
2) Whether the identification of the Appellant as the person who committed the offence was safe and reliable.
3) Whether the prosecution failed to call material witnesses
4) Whether the trial court properly considered the Appellant’s sworn defence.
5) Whether the conviction was safe in the circumstances.
6) Whether the sentence imposed upon the Appellant was lawful and appropriate.
13. The first issue for determination is whether the prosecution proved beyond reasonable doubt the ingredients of the offence of attempted robbery with violence contrary to Section 297(2) of the Penal Code. The learned trial magistrate correctly appreciated that the prosecution was required to prove an attempt to steal accompanied by any of the circumstances prescribed under the section.
14. In Ndirangu Nderitu Mureithi & another v Republic [2006] KECA 313 (KLR), the Court of Appeal distinguished the offences created under Sections 297(1) and 297(2) and set out the nature of the aggravated offence.
15. The evidence on record satisfactorily establishes that the complainant was assaulted. She testified that the attacker held her by the neck, covered her mouth and attempted to cut her with a panga. Her account of the assault was supported by the medical evidence which confirmed injuries to her neck. The use of personal violence and the presence of a panga were therefore established.
16. The prosecution was, nevertheless, required to go further and establish that the violence was used in furtherance of an attempt to steal. The complainant stated that the attacker asked whether she had beans and thereafter assaulted her. She also stated that she had a container containing airtime scratch cards. There was no evidence, beyond her account, that the attacker sought to obtain the scratch cards, money or any other property from her, or that his conduct was directed towards taking property from her. The evidence consequently establishes the assault, but does not sufficiently establish the intention to steal which is fundamental to the offence of attempted robbery.
17. The evidence of the assault is not in itself corroboration of the alleged attempted robbery. The medical evidence confirms that the complainant sustained injuries, but does not establish the purpose for which the assault was committed. Similarly, the evidence concerning the panga and slippers does not demonstrate an intention to steal. The prosecution case on the alleged attempt to rob therefore rests substantially on the complainant's account, without independent evidence connecting the assault to an intention to steal.
18. This Court, having reconsidered the evidence, finds that the prosecution proved beyond reasonable doubt that the complainant was subjected to an assault involving personal violence and a panga, but did not prove the essential ingredient that the assault was committed in furtherance of an attempt to steal.
19. The second issue for determination is whether the identification of the Appellant as the person who committed the offence was safe and reliable. The learned trial magistrate considered the complainant’s evidence that she knew the Appellant as her neighbour and that it was he who confronted and assaulted her. The Appellant admitted that he had gone to the complainant’s shop on the material evening to demand payment of Kshs.1,000 which he claimed was owed to him, but denied assaulting her or attempting to rob her. His presence at the scene was therefore admitted, and the issue before the trial court was whether the complainant’s evidence correctly attributed the assault to him.
20. The evidence shows that after he left, persons who responded to the complainant’s screams found her injured, while the medical evidence confirmed injuries to her neck. Although those witnesses did not witness the assault, their evidence supports the complainant’s account of what had occurred immediately before their arrival.
21. The learned trial magistrate accepted the complainant’s evidence that the Appellant was the person who assaulted her. Upon re-evaluation of the evidence, this Court finds that the Appellant’s admitted presence at the shop, the complainant’s evidence attributing the assault to him, the immediate circumstances in which she was found injured after his departure, and the medical evidence confirming her injuries sufficiently support that finding.
22. The possibility that an entirely different person assaulted the complainant during the Appellant’s admitted encounter with her is not reasonably borne out by the evidence. This Court therefore upholds the learned trial magistrate’s finding that the assault upon the complainant was perpetrated by the Appellant.
23. The third issue for determination is whether the prosecution failed to call material witnesses. The Appellant did not identify any particular witness who, though not called, possessed evidence material to the determination of the charge. In the absence of such identification, this Court finds no basis for holding that the prosecution withheld material evidence or that the failure to call any additional witness prejudiced the Appellant.
24. The fourth issue for determination is whether the learned trial magistrate properly considered the Appellant’s sworn defence. The Appellant explained that he had gone to the complainant’s shop to demand payment of Kshs.1,000 which he claimed was owed to him and denied assaulting her or attempting to rob her. This Court has considered the defence alongside the prosecution evidence and the findings already made in respect of the assault and the alleged intention to steal. The defence was material because it provided an explanation for the Appellant’s presence at the complainant’s shop, which presence was in any event admitted, and directly raised the question whether his purpose was to steal as alleged by the prosecution.
25. Although the learned trial magistrate rejected the Appellant’s account, the defence required consideration in determining whether the prosecution had proved every ingredient of the offence charged beyond reasonable doubt. The evidence accepted by the trial court established that the complainant was assaulted, but did not establish that the assault was committed with an intention to steal. Proper consideration of the Appellant’s explanation, together with the absence of evidence demonstrating an intention to obtain the complainant’s property, would have left a reasonable doubt as to whether the assault was committed in furtherance of an attempted robbery. This Court therefore finds that, while the defence was considered, it was not sufficiently evaluated in relation to the essential ingredient of intention to steal, and had it been properly weighed against the prosecution evidence, the conviction for attempted robbery with violence could not safely have been sustained.
26. The fifth issue for determination is whether the conviction was safe in the circumstances. Having reconsidered and re-evaluated the evidence, this Court finds that the conviction for attempted robbery with violence was not supported by proof of the intention to steal, although the evidence established that the Appellant assaulted the complainant causing actual bodily harm. The Appellant ought therefore to have been convicted of assault causing actual bodily harm contrary to Section 251 of the Penal Code.
27. The sixth issue for determination is whether the sentence imposed upon the Appellant was lawful and appropriate. The Appellant was convicted on 6th November 2024 and sentenced to death. In view of the offence established by the evidence and the period already spent in custody, a sentence equivalent to the period already served is appropriate.
28. In the result, the appeal succeeds. The conviction for attempted robbery with violence contrary to Section 297(2) of the Penal Code is quashed and the sentence of death imposed on 6th November 2024 is set aside. The Appellant is convicted of assault causing actual bodily harm contrary to Section 251 of the Penal Code and sentenced to the period already served from 6th November 2024. The Appellant shall be released forthwith unless otherwise lawfully held.
2. The prosecution called five witnesses in support of its case. PW1, Kennedy Kioko, a Senior Clinical Officer at Kitui County Referral Hospital, testified that his colleague, Karen Makau, had examined the complainant but was unavailable to testify as she was away pursuing further studies. He produced the complainant’s P3 form dated 20th February 2023, which was marked as Exh. 1. The P3 form showed that the complainant had injuries on the neck, with complaints of neck pain and hoarseness of voice. The injuries were approximately 16 hours old and were caused by a blunt object. The degree of injury was assessed as harm.
3. PW2, Elizabeth Kasili, a farmer from Kyanika Location, Kilonzo Sub-location, testified that on 19th February 2023 at about 8.00 p.m., she was closing her kiosk near her home when the Appellant, whom she knew as her neighbour, entered through the gate and approached the rear door. He asked whether she had beans, held her by the neck and covered her mouth. He then drew a panga and attempted to cut her. A struggle ensued, during which she tried to raise an alarm, prompting the Appellant to release her and flee. The complainant raised an alarm and her children came from the house. She stated that she had seen the Appellant clearly under the security lights in the compound. She reported the matter at Nzambani Police Station and was taken to Kitui General Hospital the following day, where she received treatment and a P3 form was filled. She stated that she had no grudge against the Appellant and that they had been good neighbours. She denied that she owed the Appellant Kshs. 1000/-.
4. PW3, Joseph Mbisi, a farmer from Matholeni, testified that on 19th February 2023 at about 8.00 p.m., he was at home when he heard screams from the house of Elizabeth Kasili, his neighbour. He went to the house and found several people there. The complainant stated that she had been attacked and that Peter Mutinda had attempted to rob her. The Appellant was not at the scene. They searched for him without success but he was subsequently arrested.
5. PW4, John Kioko James, a mason from Kitui East Ngengi village, testified that on 19th February 2023 at about 8.00 p.m., he heard a woman screaming and went to the scene. He found his neighbour, Mama Daudi, who informed him that she had been attacked and that Peter Mutinda had attempted to rob her. PW4 did not see the person who had attacked the complainant. He participated in the search for the attacker, who was not found at the scene. A panga and a pair of slippers were recovered and produced in evidence as MFI 2 and MFI 3 respectively. PW4 stated that he knew the Appellant as his neighbour and had no grudge against him.
6. PW5, No. 11089 PC Joel Lelyangu of Nzambani Police Station, was the investigating officer. He testified that on 19th February 2023 at about 8.10 p.m., he received information from the OCS concerning a robbery at Mabulini-Kilonzo Sub-location and proceeded to the scene. He recovered a panga and a pair of slippers which had been left at the scene and took them to the police station. At about 9.00 p.m., the Appellant arrived at the station without shoes and stated that people from Kilonzo wanted to kill him. He identified himself as Peter Mutinda from Kilonzo. PW5 summoned the complainant, who identified him as her attacker. He thereafter arrested and charged him.
7. The Appellant, Peter Mutinda, gave sworn evidence in his defence. He testified that on 19th February 2023 at about 7.30 p.m., while on his way home, he went to the complainant’s premises to ask for Kshs.1,000 which she owed him for work he had done for her. When he asked for the money, the complainant told him to leave or she would scream. She then raised an alarm, causing him to leave the premises and proceed to Nzambani Police Station to report the incident. He was subsequently informed that the complainant had also made a report, was arrested and charged. He denied having attempted to rob or assault her and maintained that the case was fabricated. In cross-examination, the Appellant explained that the complainant had initially owed him Kshs.3,000, paid Kshs.2,000, and remained indebted to him in the sum of Kshs.1,000. He stated that there was no written agreement for the work. He called no witnesses and closed his case.
8. Upon conclusion of the trial, the learned trial magistrate found the Appellant guilty, convicted him of the offence of attempted robbery with violence and, on 6th November 2024, sentenced him to death.
9. The Appellant was aggrieved by the conviction and sentence and he filed this appeal on the following grounds of appeal:
1) That the learned trial magistrate erred in law and fact by conducting the trial in a manner that was prejudicial to the Appellant.
2) That the learned trial magistrate erred in law and fact by admitting evidence irregularly.
3) That the learned trial magistrate erred in law and fact by overlooking vital evidence favourable to the Appellant while arriving at the conviction.
4) That the learned trial magistrate erred in law and fact by failing to properly evaluate the weight of the evidence connecting the Appellant to the offence before convicting him.
5) That the learned trial magistrate erred in law and fact by relying on corroborative evidence from the prosecution witnesses.
6) That the learned trial magistrate erred in law and fact by rejecting the Appellant’s plausible defence, which was consistent with the circumstances at the scene of the alleged offence.
7) That the learned trial magistrate erred in law by imposing a death sentence which the Appellant contended was severe, illegal and unconstitutional.
10. The Court directed that the appeal be canvassed by way of written submissions. The Appellant filed submissions dated 27th August 2026, in which he challenged the manner in which the trial was conducted, the admission and evaluation of the prosecution evidence, the failure to consider evidence favourable to the defence and the rejection of his defence. He further contended that the prosecution had not sufficiently connected him to the offence and challenged the legality and severity of the death sentence imposed by the trial court. The Respondent indicated that it would file submissions but did not do so.
11. This being a first appeal, this Court is obligated to re-evaluate the evidence adduced before the trial court afresh, analyse it, and arrive at its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and making due allowance for that disadvantage. The Court must nonetheless subject the entirety of the evidence on record to a fresh and exhaustive scrutiny, and satisfy itself as to whether the findings and conclusions reached by the trial court can be sustained on that evidence. This duty was authoritatively stated in Okeno v Republic [1972] EA 32, and has since been consistently applied and reaffirmed in numerous decisions of the superior courts, including Selle v Associated Motor Boat Co. [1968] EA 123, where it was held that an appellate court will not ordinarily interfere with a finding of fact by the trial court unless such finding was based on no evidence, or on a misapprehension of the evidence, or the trial court is shown demonstrably to have acted on wrong principles in reaching its findings.
12. From the grounds of appeal, the evidence on record and the submissions filed by the Appellant, the following issues arise for determination:
1) Whether the prosecution proved all the ingredients of the offence of attempted robbery with violence beyond reasonable doubt.
2) Whether the identification of the Appellant as the person who committed the offence was safe and reliable.
3) Whether the prosecution failed to call material witnesses
4) Whether the trial court properly considered the Appellant’s sworn defence.
5) Whether the conviction was safe in the circumstances.
6) Whether the sentence imposed upon the Appellant was lawful and appropriate.
13. The first issue for determination is whether the prosecution proved beyond reasonable doubt the ingredients of the offence of attempted robbery with violence contrary to Section 297(2) of the Penal Code. The learned trial magistrate correctly appreciated that the prosecution was required to prove an attempt to steal accompanied by any of the circumstances prescribed under the section.
14. In Ndirangu Nderitu Mureithi & another v Republic [2006] KECA 313 (KLR), the Court of Appeal distinguished the offences created under Sections 297(1) and 297(2) and set out the nature of the aggravated offence.
15. The evidence on record satisfactorily establishes that the complainant was assaulted. She testified that the attacker held her by the neck, covered her mouth and attempted to cut her with a panga. Her account of the assault was supported by the medical evidence which confirmed injuries to her neck. The use of personal violence and the presence of a panga were therefore established.
16. The prosecution was, nevertheless, required to go further and establish that the violence was used in furtherance of an attempt to steal. The complainant stated that the attacker asked whether she had beans and thereafter assaulted her. She also stated that she had a container containing airtime scratch cards. There was no evidence, beyond her account, that the attacker sought to obtain the scratch cards, money or any other property from her, or that his conduct was directed towards taking property from her. The evidence consequently establishes the assault, but does not sufficiently establish the intention to steal which is fundamental to the offence of attempted robbery.
17. The evidence of the assault is not in itself corroboration of the alleged attempted robbery. The medical evidence confirms that the complainant sustained injuries, but does not establish the purpose for which the assault was committed. Similarly, the evidence concerning the panga and slippers does not demonstrate an intention to steal. The prosecution case on the alleged attempt to rob therefore rests substantially on the complainant's account, without independent evidence connecting the assault to an intention to steal.
18. This Court, having reconsidered the evidence, finds that the prosecution proved beyond reasonable doubt that the complainant was subjected to an assault involving personal violence and a panga, but did not prove the essential ingredient that the assault was committed in furtherance of an attempt to steal.
19. The second issue for determination is whether the identification of the Appellant as the person who committed the offence was safe and reliable. The learned trial magistrate considered the complainant’s evidence that she knew the Appellant as her neighbour and that it was he who confronted and assaulted her. The Appellant admitted that he had gone to the complainant’s shop on the material evening to demand payment of Kshs.1,000 which he claimed was owed to him, but denied assaulting her or attempting to rob her. His presence at the scene was therefore admitted, and the issue before the trial court was whether the complainant’s evidence correctly attributed the assault to him.
20. The evidence shows that after he left, persons who responded to the complainant’s screams found her injured, while the medical evidence confirmed injuries to her neck. Although those witnesses did not witness the assault, their evidence supports the complainant’s account of what had occurred immediately before their arrival.
21. The learned trial magistrate accepted the complainant’s evidence that the Appellant was the person who assaulted her. Upon re-evaluation of the evidence, this Court finds that the Appellant’s admitted presence at the shop, the complainant’s evidence attributing the assault to him, the immediate circumstances in which she was found injured after his departure, and the medical evidence confirming her injuries sufficiently support that finding.
22. The possibility that an entirely different person assaulted the complainant during the Appellant’s admitted encounter with her is not reasonably borne out by the evidence. This Court therefore upholds the learned trial magistrate’s finding that the assault upon the complainant was perpetrated by the Appellant.
23. The third issue for determination is whether the prosecution failed to call material witnesses. The Appellant did not identify any particular witness who, though not called, possessed evidence material to the determination of the charge. In the absence of such identification, this Court finds no basis for holding that the prosecution withheld material evidence or that the failure to call any additional witness prejudiced the Appellant.
24. The fourth issue for determination is whether the learned trial magistrate properly considered the Appellant’s sworn defence. The Appellant explained that he had gone to the complainant’s shop to demand payment of Kshs.1,000 which he claimed was owed to him and denied assaulting her or attempting to rob her. This Court has considered the defence alongside the prosecution evidence and the findings already made in respect of the assault and the alleged intention to steal. The defence was material because it provided an explanation for the Appellant’s presence at the complainant’s shop, which presence was in any event admitted, and directly raised the question whether his purpose was to steal as alleged by the prosecution.
25. Although the learned trial magistrate rejected the Appellant’s account, the defence required consideration in determining whether the prosecution had proved every ingredient of the offence charged beyond reasonable doubt. The evidence accepted by the trial court established that the complainant was assaulted, but did not establish that the assault was committed with an intention to steal. Proper consideration of the Appellant’s explanation, together with the absence of evidence demonstrating an intention to obtain the complainant’s property, would have left a reasonable doubt as to whether the assault was committed in furtherance of an attempted robbery. This Court therefore finds that, while the defence was considered, it was not sufficiently evaluated in relation to the essential ingredient of intention to steal, and had it been properly weighed against the prosecution evidence, the conviction for attempted robbery with violence could not safely have been sustained.
26. The fifth issue for determination is whether the conviction was safe in the circumstances. Having reconsidered and re-evaluated the evidence, this Court finds that the conviction for attempted robbery with violence was not supported by proof of the intention to steal, although the evidence established that the Appellant assaulted the complainant causing actual bodily harm. The Appellant ought therefore to have been convicted of assault causing actual bodily harm contrary to Section 251 of the Penal Code.
27. The sixth issue for determination is whether the sentence imposed upon the Appellant was lawful and appropriate. The Appellant was convicted on 6th November 2024 and sentenced to death. In view of the offence established by the evidence and the period already spent in custody, a sentence equivalent to the period already served is appropriate.
28. In the result, the appeal succeeds. The conviction for attempted robbery with violence contrary to Section 297(2) of the Penal Code is quashed and the sentence of death imposed on 6th November 2024 is set aside. The Appellant is convicted of assault causing actual bodily harm contrary to Section 251 of the Penal Code and sentenced to the period already served from 6th November 2024. The Appellant shall be released forthwith unless otherwise lawfully held.