(Being an appeal from the conviction and sentence delivered on 21/7/2023 by Hon. Cheruto, C. Kipkorir, PM in Kerugoya Magistrates Court Criminal Case No. E346 of 2022)
1. The appellant was charged with the offence of the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on the night of 25th February 2022 at about 2100 Hours at Kutus area within Kirinyaga County, jointly with others not before court being armed with offensive weapons hammer, knives robbed of Boniface Karanja Mungei a camera make (Nikon) D 53100, a camera charger, a small microphone and a mobile phone make Techno Cammon II, red in colour all valued at approximately KShs 50,000/= and at the time of such robbery used actual violence to the said Boniface Karanja Mungei, fracturing his jaw.
2. The appellant was convicted and sentenced to 30 years imprisonment by the trial court. He was aggrieved by the decision and preferred this appeal through his petition dated July 2023 based on the following amended grounds of appeal dated 19/4/2024:
i. the trial magistrate erred in law and fact by failing to consider that the identity of the attacker was not proved and the identification parade was not conducted as per section 46 of the Police Standing Orders.
ii. the trial magistrate erred in law and fact by convicting the appellant without considering that the data communication and transaction of the M-pesa was not proved and the crucial witness, that is, the data technician failed to attend court for cross-examination.
iii. the learned trial magistrate erred in law and fact by failing to find that the appellant was not arrested because of the present charge hence prejudicing his constitutional rights.
iv. the learned trial magistrate erred in law and fact by failing to consider the alleged items stolen from the complainant were never found in his possession and the same were not produced before the court and no receipt for purchase were produced.
v. the learned trial magistrate erred in law and fact by convicting the appellant without considering his plausible defence which was not challenged by the prosecution.
3. The appeal was disposed of by way of written submissions filed by the appellant and learned counsel for the respondent.
4. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
5. The prosecution called seven witnesses to support its case.
6. In summary the prosecution evidence was that on the evening of 25/2/2022 PW 1 Boniface Karanja, a student at Kirinyaga University was called by a number 0782499445. PW 1 is a photographer and apparently, the caller, who allegedly wanted some photography work done for him had been referred to Boniface by Boniface’s collegemate and friend PW 5, Morgan Kibet. PW 5 was away at the time and so could not take up the work. PW 5 said that he had been called by two numbers requesting for the photography work 0106938483 and 0106829275.
7. PW 1 said his caller sounded genuine and appeared to be much older told him. The caller then said that he would send a motorcycle rider to pick PW 1. PW 1 was afterwards called by a person who said he was the motorcycle rider who turned out to be the appellant. He did not however remember the number for the rider because he had lost his phone in the robbery. PW 1 together with his collegemate and friend PW 2, Elnathan Kipyegon Lagat met the motorcycle rider near the university. The rider was with the appellant and who had made the second call. After PW 1 talking to the appellant, including on issues of security, they all boarded the motorcycle. PW 1 and PW 2 later identified as the appellant as the one who called PW 1 and came for him with the motorcycle rider.
8. Along the way, another motorcycle approached at high speed whereupon the rider of their motorcycle switched off the lights. At that time, the appellant spoke to PW 1 and PW 2 asking them in Kiswahili whether they had ever been stabbed with a dagger. The rider of the other motor cycle pulled PW 1 and their motor cycle which was still in motion shook. PW 2 was scared and he jumped off the motorcycle and ran and hid in coffee bushes. The appellant pursued him but did not trace him. The appellant went back to where PW 1 and the other two men and the motor cycles were. PW 1 was asked for the bag which carried the camera and the camera charger and an audio microphone and he declined to give it out. He threw it away and the appellant went for it. They beat PW 1 badly and broke his jaw. The appellant reached into his pocket and took out his mobile phone. He then asked him for his password and PIN which PW 1 gave out. They left him crying, shouting and in great pain.
9. In July 2022 DCI officers from Kerugoya police station called PW 1 and informed him that they had recovered a motor cycle which had been used in a different robbery. When PW 1 was shown the motorcycle he identified it as the one they had boarded on the night he was robbed because it had some metal that had pinched him while he was seated there.
10. PW 1 said that the appellant took KShs 200/= and a further KShs 450/= by way of overdraft credit through what is commonly referred to as “Fuliza” from PW 1‘s phone. He was shown his M-Pesa statement and confirmed that the transaction for KShs 450 was captured and the money went to phone number 0782 499 445.
11. After they had left, PW 2 emerged from his hiding and PW 1 and they left. They called a friend and they went where he was. The following day, PW 1 went for medical attention at Kerugoya County Referral hospital. He was attended to by PW 6, Lincoln Mwangi, a clinical officer. PW 6 said that PW 1 presented with clothes with blood stains. He was in severe pain and his lower jaw was in severe pain and he was unable to move the lower jaw. An x-ray for the jaw showed that it was fractured. He needed specialized treatment by maxillofacial surgery. He was referred to Tenri Children hospital in Embu where the fracture was repaired. PW 6 assessed the degree of injury as grievous harm.
12. PW 1 said that he could identify the appellant because he saw him well when they met on the road near the university under street lights and that at the time, he had on ragged jeans trousers and a brown Demi jacket. That the appellant did not have a mask on unlike his companion, the motor cycle rider. They spoke for about two minutes.
13. In cross-examination, PW 1 said that he did not identify the appellant by his scar on the bridge of the nose as it is not very visible. He said that he has a good memory.
14. PW 3, Grace Ngenye Munyei is PW 1’s mother. She said she responded to a call telling her that PW 1 had been injured. She went to see him at the Kerugoya hospital where she found him with multiple injuries in bad condition. He was groaning in pain. She took up the matter and followed up to ensure that he received the requisite treatment.
15. PW 4, IP Calvin Odhiambo conducted an identification parade of the appellant on 29/7/2022 where PW 1 and PW 2 identified the appellant as one of the robbers.
16. PW 7, Cpl Aron Koross was the investigating officer in the case. He reiterated the evidence tendered by the other witnesses and said that the appellant was arrested following another robbery involving a student of Kirinyaga University who died. PW 7 was not one of the officers who arrested the appellant.
17. The appellant gave sworn evidence in defence and called one witness, DW 2, Caroline Wambui Muriuki, his sister. He denied that he committed the offence. He said that at the time of his arrest, the police were looking for his step-brother Erick Gitonga in connection with the robbery and killing of the university student. He was detained in custody upon the police obtaining an order from court to detain him pending investigations into the incident of robbery and murder. He eventually assisted police to arrest Erick Gitonga.
18. He said that while in custody PC Koross and PC Waweru kept taking photographs of them. He denied being involved in the robbery and killing of the student. There were other suspects Elias Murimi and Joseph Kangethe also arrested and in custody with him. The two told police and the appellant was the one with the motor cycle used in the robbery and murder incident. Upon investigations, the police found that he was not involved in that case. However, he was asked for money in order to be set free. He was not able to raise the money and he was eventually charged with the present offence. He also said he had two other cases in two different courts at Kerugoya but he was acquitted in both of them.
19. In cross-examination, he said that on 25/2/2022, he was not at Kutus but was at their home in Kibingo the whole day.
20. DW 2, Caroline Wambui Muriuki, the appellant’s sister gave evidence that on 25/2/2022, their mother was unwell. She said she went home that day and left the following day. She said further that she was with the appellant the whole day and he never left home. She said the does not have a house of his own and stays in their father’s house.
21. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. She dismissed the appellant’s defence and convicted him accordingly.
22. In arriving at her decision, the learned trial magistrate found that phone number 0782499445 is what connected the two incidents of robbery and gave the investigating officer the lead to arrest the suspects who had committed both offences.
23. The trial court found the defence by the appellant not persuasive enough because the details needed to assure the court that the appellant and his witness DW 2 were together at the time of the alleged offence were not provided. She dismissed the assertions by the appellant that he was at home with his sister DW 2 and also that the PC Koross had asked him for money in order to release him as unbelievable.
24. The appellant submits that the offence against the complainant was committed at night and the alleged identification was under difficult circumstances and that the intensity of light at the place where PW 1 and PW 2 allegedly met him was not given. He cites the case of . He submits that the complainant and PW 2 did not provide the description of the robbers to the police and that was why it took so long for him to be arrested. That his arrest was not in connection with the robbery against the complainant herein but for a different incident.
25. The respondent submitted that PW 1 and PW 2 interacted with the appellant for a few minutes when they met near the university gate before they left together and that the area which is a junction has good lighting. Further that they were also able to identify him at the identification parade.
26. Learned counsel therefore submits that the trial court was satisfied that PW 1 and PW 2 were reliable witnesses and properly identified the appellant. He cited inter alia the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR) where the Court of Appeal stated thus regarding identification:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered (see R. v.Turnbull [1976] 63 Cr. App. R.132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.”
27. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent and the judgment of the trial court. The issues upon which this appeal rests are: 1) whether or not there was proper identification of the appellant by PW 1 and PW 2 as one of the robbers, 2) whether or not there was evidence of mobile phone communication between PW 1 and the appellant and that the appellant’s phone received money from PW 1’s phone during the night and, 3) whether on the whole the offence of robbery with violence under section 296(2) was proved against the appellant beyond a reasonable doubt.
28. It is the appellant’s contention that the offence of robbery with violence was not proved against him beyond a reasonable doubt. We now need to consider the ingredients to ascertain whether the offence was proved beyond a reasonable doubt as found by the learned trial magistrate.
29. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] eKLR.
30. The present case is hinged on all the three elements of the offence, that the appellant was in company of two other people that is, they were more than one; second that they used violence upon the complainant and third, they were armed with offensive weapons namely a knife and hammer.
31. As provided for under section 295 PC and explained in the case of Johana Ndungu v Republic [1996] eKLR, in an offence of robbery with violence, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2).
32. On the element of theft, the complainant said that he lost a camera, the camera charge and a mobile phone, together with the bag in which the items were being carried. He also said he lost some KShs 450/= which was transferred from his phone number 0701 966 713 to phone number 0782 499 445. I do not think much turns on the issue of the complainant losing these items to the robbers. The appellant started his submissions by stating that he did not dispute that the robbery took place. What he disputed was that he was involved.
33. What is of interest is mobile phone number 0782 499 445 because of its centrality in this case. It is an important number because PW 1 said it was the number that called him requesting for photography services. He also confirmed that it was not the number that the person whom he later allegedly identified as the appellant called him on. PW 1 also said that this was the number to which money, KShs 450/= was sent from his phone number 0701 966 713 on the material night after he had been robbed of his phone and forced to reveal his password and PIN. He referred to an M-Pesa statement showing that transaction. That M-Pesa statement showing the account holder as Boniface Karanja Mungei indeed the transfer of the funds was done between 22.05.28 Hrs and 22.05.29 Hrs. This was the time after the attack upon the complainant had taken place. In the statement, the number to which the money was sent 0782 499 445 is shown as unregistered user. It does not show that it was registered in the name of the appellant. PW 1 having said that the person who called him on that number was not the appellant, evidence to connect the appellant and the number must be given.
34. The investigating officer alleged that the number 0782 499 445 was for the person who was sent to pick PW 1. However, this evidence is contrary to that of PW 1 who said that the person who came to pick him called him using a different number which he could not recall since his phone had been stolen. That contradiction is material and it was not resolved by the prosecution.
35. The investigating officer also alleged that Morgan was called by number 0782 499 445 and that this was the same number that called PW 1. However, Morgan, PW 5 never mentioned this number in his evidence. He said that the numbers that called him were 0106938483 and 0106829275. The investigating officer did not explain how he established that this was the number used to call Morgan because Morgan’s mobile phone call data was never made available to court as evidence.
36. As found by the learned trial magistrate, the primary connection between the appellant and PW 1 was mobile phone number 07822499445 which PW 1 said called him first. In spite of the mobile phone number 0782 499 445 being central in the arrest of the appellant, there was no evidence linking him to the number. No witness from Airtel, a mobile service provider for that number was made available to testify. What I saw in the proceedings was that on 9th March 2023, the learned prosecution counsel informed the court that the report from the Liaison officer had minor changes and for that reason he was not able to give evidence. The question is, which were these minor changes? This was the person to provide the details concerning the transactions on phone number 0782 499 445 on whether indeed it communicated with PW 1, the money allegedly sent from PW 1’s number to it and who the subscriber of the number was. These were material issues required to prove the prosecution’s case that the appellant was indeed involved in the robbery.
37. In my view, since the prosecution was required to prove the appellant guilty beyond any reasonable doubt, the unexplained failure of the prosecution to make available the Liaison Officer in court to testify even after he attended court created sufficient doubt, on his intended testimony, especially when the prosecution counsel said that his report had some errors. In that case the court was entitled to make an adverse inference that his or her evidence would most likely be unfavorable to the prosecution’s case had he testified especially since the other evidence was barely sufficient to prove the case beyond a reasonable doubt. I therefore draw such adverse inference relying on the case of Bukenya v Uganda (1973) E.A.
38. On the issue of identification of the appellant PW 1 and PW 2 said that they identified the appellant at the place where they met near the university as there were security lights there and that each of them picked out the appellant at an identification parade.
39. In the proceedings before the trial court, there was no inquiry by the court of the circumstances under which the identification was made. The fact that they said there were security lights around cannot tell the intensity of the lighting and how close to the light they were. From the evidence it is apparent that the people who came for them had already planned to rob them, it means that they would take all measures to conceal their open identity. Indeed, PW 1 and PW 2 said that the rider had on a mask which in the circumstances I believe was part of concealing his identity. It is very unlikely that the appellant would have left himself in the open to be freely identified. In the case cited by the appellant of Wamunga v Republic [1989] KECA 47 (KLR) the Court of Appeal stated that;
[W]here the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be the basis of a conviction.
40. It has thus been held that before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him (see R v Turnbull [1976] 3 ALL ER 549).
41. One other issue about identification of the attackers is that whereas PW 1 and PW 2 said in their respective testimonies that the person who picked then outside the university came with a rider, the investigating officer in his evidence said that the rider was alone. He said as follows:
“Because it was late at night, he went with his friend as mentioned. They met the person who had a motorcycle outside the university gate. The motorcycle had a red colour. He met the complainant and told them he had been sent… The rider said he wanted to go for short call that is when the other three showed up. The complainant had a bag which had a camera and charger, he had his phone in his trouser pocket. El Nathan had a phone. El Nathan ran away into the coffee. He left Boniface being attacked…”
42. This evidence by the investigating officer shows that in their statements to the police PW 1 and PW 2 said that the rider who picked them at the university gate was alone. However, along the way, he said he wanted to go for a short call and three other people showed up and attacked the complainant as El Nathan ran away. That report is not consistent with their evidence that they were picked by two people, the rider and the appellant. That inconsistence is quite material to the case but it was not resolved. The issue is, why would they allege that they were picked by two people when he was only one. The reason is, their change of version was meant to isolate the appellant from the rider because the rider had on a mask and so, as they said they could not have identified him properly. Yet, according to the investigating officer, this rider was the only one who picked them. If he had a mask on as they said, then they did not identify him as the appellant.
43. One other issue that creates doubt in their identification story is, neither PW 1 nor PW 2 stated in what position the three of then sat on the passenger seat of the motor cycle. this was material because, their position would have enabled both of them or one of them to clearly see and mark the other person or of they both sat ahead of him then they would not have easily identified him. However, from the evidence of the investigating officer, it appears that there was only the rider who obviously sat in front of them. From the evidence of PW 1 and PW 2, the rider had on a mask. Under those circumstances, I find that they did not have a good opportunity to identify him.
44. I have considered the judgment of the trial court and I find that without analyzing the evidence of identification, the learned trial magistrate found that the same was sufficient to convict the appellant. There is no mention of the circumstances under which the appellant was identified and that was a lack of direction on the part of the learned trial magistrate. I find that the evidence of identification of the appellant by PW 1 and PW 2 during the material night is not reliable.
45. The evidence of identification of the appellant by PW 1 and PW 2 at the parade conducted by PW 4 could not have been foolproof if the two witnesses had not properly identified the robbers earlier. I agree with the appellant’s contention that the fact that there was no prior description given of him by PW 1 and PW 2 to the police yet he was arrested much later, some four months down the line made the evidence of the identification parade weak. As was held in the case cited by the prosecution counsel of Francis Njiru Kariuki & 7 others (supra), among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all. In this case, no such description was given at all. The appellant said that there was a possibility that his photographs had been taken and shown to PW 1 and PW 2 prior to the ID parade being carried out. That contention is not without merit given that DCI officers are known to parade suspects and take photographs of them while holding some boards that give their full identities. The likelihood that this happened in the present case cannot be swept under the carpet given the public interest in the case for which the appellant was arrested, the robbery and killing of a Kirinyaga university student.
46. I therefore find the evidence of identification at the parade to be worthless.
47. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly. However, my evaluation of the evidence above leads to the conclusion that this finding by the learned trial magistrate was not correct. I find that the prosecution’s case was full of gaps and was not capable and did not prove the offence against the appellant beyond a reasonable doubt.
48. Consequently, the appeal is allowed and the conviction of the appellant for the offence of robbery with violence under section 296(2) of the Penal Code is set aside and substituted with an acquittal.
49. The appellant is set at liberty forthwith unless otherwise lawfully held.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 11th day of August 2025 in the presence of:
The appellant in person from Nyeri prison.
Ms Komu prosecution counsel for the respondent
Job: Court assistant.
1. The appellant was charged with the offence of the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on the night of 25th February 2022 at about 2100 Hours at Kutus area within Kirinyaga County, jointly with others not before court being armed with offensive weapons hammer, knives robbed of Boniface Karanja Mungei a camera make (Nikon) D 53100, a camera charger, a small microphone and a mobile phone make Techno Cammon II, red in colour all valued at approximately KShs 50,000/= and at the time of such robbery used actual violence to the said Boniface Karanja Mungei, fracturing his jaw.
2. The appellant was convicted and sentenced to 30 years imprisonment by the trial court. He was aggrieved by the decision and preferred this appeal through his petition dated July 2023 based on the following amended grounds of appeal dated 19/4/2024:
i. the trial magistrate erred in law and fact by failing to consider that the identity of the attacker was not proved and the identification parade was not conducted as per section 46 of the Police Standing Orders.
ii. the trial magistrate erred in law and fact by convicting the appellant without considering that the data communication and transaction of the M-pesa was not proved and the crucial witness, that is, the data technician failed to attend court for cross-examination.
iii. the learned trial magistrate erred in law and fact by failing to find that the appellant was not arrested because of the present charge hence prejudicing his constitutional rights.
iv. the learned trial magistrate erred in law and fact by failing to consider the alleged items stolen from the complainant were never found in his possession and the same were not produced before the court and no receipt for purchase were produced.
v. the learned trial magistrate erred in law and fact by convicting the appellant without considering his plausible defence which was not challenged by the prosecution.
3. The appeal was disposed of by way of written submissions filed by the appellant and learned counsel for the respondent.
4. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
5. The prosecution called seven witnesses to support its case.
6. In summary the prosecution evidence was that on the evening of 25/2/2022 PW 1 Boniface Karanja, a student at Kirinyaga University was called by a number 0782499445. PW 1 is a photographer and apparently, the caller, who allegedly wanted some photography work done for him had been referred to Boniface by Boniface’s collegemate and friend PW 5, Morgan Kibet. PW 5 was away at the time and so could not take up the work. PW 5 said that he had been called by two numbers requesting for the photography work 0106938483 and 0106829275.
7. PW 1 said his caller sounded genuine and appeared to be much older told him. The caller then said that he would send a motorcycle rider to pick PW 1. PW 1 was afterwards called by a person who said he was the motorcycle rider who turned out to be the appellant. He did not however remember the number for the rider because he had lost his phone in the robbery. PW 1 together with his collegemate and friend PW 2, Elnathan Kipyegon Lagat met the motorcycle rider near the university. The rider was with the appellant and who had made the second call. After PW 1 talking to the appellant, including on issues of security, they all boarded the motorcycle. PW 1 and PW 2 later identified as the appellant as the one who called PW 1 and came for him with the motorcycle rider.
8. Along the way, another motorcycle approached at high speed whereupon the rider of their motorcycle switched off the lights. At that time, the appellant spoke to PW 1 and PW 2 asking them in Kiswahili whether they had ever been stabbed with a dagger. The rider of the other motor cycle pulled PW 1 and their motor cycle which was still in motion shook. PW 2 was scared and he jumped off the motorcycle and ran and hid in coffee bushes. The appellant pursued him but did not trace him. The appellant went back to where PW 1 and the other two men and the motor cycles were. PW 1 was asked for the bag which carried the camera and the camera charger and an audio microphone and he declined to give it out. He threw it away and the appellant went for it. They beat PW 1 badly and broke his jaw. The appellant reached into his pocket and took out his mobile phone. He then asked him for his password and PIN which PW 1 gave out. They left him crying, shouting and in great pain.
9. In July 2022 DCI officers from Kerugoya police station called PW 1 and informed him that they had recovered a motor cycle which had been used in a different robbery. When PW 1 was shown the motorcycle he identified it as the one they had boarded on the night he was robbed because it had some metal that had pinched him while he was seated there.
10. PW 1 said that the appellant took KShs 200/= and a further KShs 450/= by way of overdraft credit through what is commonly referred to as “Fuliza” from PW 1‘s phone. He was shown his M-Pesa statement and confirmed that the transaction for KShs 450 was captured and the money went to phone number 0782 499 445.
11. After they had left, PW 2 emerged from his hiding and PW 1 and they left. They called a friend and they went where he was. The following day, PW 1 went for medical attention at Kerugoya County Referral hospital. He was attended to by PW 6, Lincoln Mwangi, a clinical officer. PW 6 said that PW 1 presented with clothes with blood stains. He was in severe pain and his lower jaw was in severe pain and he was unable to move the lower jaw. An x-ray for the jaw showed that it was fractured. He needed specialized treatment by maxillofacial surgery. He was referred to Tenri Children hospital in Embu where the fracture was repaired. PW 6 assessed the degree of injury as grievous harm.
12. PW 1 said that he could identify the appellant because he saw him well when they met on the road near the university under street lights and that at the time, he had on ragged jeans trousers and a brown Demi jacket. That the appellant did not have a mask on unlike his companion, the motor cycle rider. They spoke for about two minutes.
13. In cross-examination, PW 1 said that he did not identify the appellant by his scar on the bridge of the nose as it is not very visible. He said that he has a good memory.
14. PW 3, Grace Ngenye Munyei is PW 1’s mother. She said she responded to a call telling her that PW 1 had been injured. She went to see him at the Kerugoya hospital where she found him with multiple injuries in bad condition. He was groaning in pain. She took up the matter and followed up to ensure that he received the requisite treatment.
15. PW 4, IP Calvin Odhiambo conducted an identification parade of the appellant on 29/7/2022 where PW 1 and PW 2 identified the appellant as one of the robbers.
16. PW 7, Cpl Aron Koross was the investigating officer in the case. He reiterated the evidence tendered by the other witnesses and said that the appellant was arrested following another robbery involving a student of Kirinyaga University who died. PW 7 was not one of the officers who arrested the appellant.
17. The appellant gave sworn evidence in defence and called one witness, DW 2, Caroline Wambui Muriuki, his sister. He denied that he committed the offence. He said that at the time of his arrest, the police were looking for his step-brother Erick Gitonga in connection with the robbery and killing of the university student. He was detained in custody upon the police obtaining an order from court to detain him pending investigations into the incident of robbery and murder. He eventually assisted police to arrest Erick Gitonga.
18. He said that while in custody PC Koross and PC Waweru kept taking photographs of them. He denied being involved in the robbery and killing of the student. There were other suspects Elias Murimi and Joseph Kangethe also arrested and in custody with him. The two told police and the appellant was the one with the motor cycle used in the robbery and murder incident. Upon investigations, the police found that he was not involved in that case. However, he was asked for money in order to be set free. He was not able to raise the money and he was eventually charged with the present offence. He also said he had two other cases in two different courts at Kerugoya but he was acquitted in both of them.
19. In cross-examination, he said that on 25/2/2022, he was not at Kutus but was at their home in Kibingo the whole day.
20. DW 2, Caroline Wambui Muriuki, the appellant’s sister gave evidence that on 25/2/2022, their mother was unwell. She said she went home that day and left the following day. She said further that she was with the appellant the whole day and he never left home. She said the does not have a house of his own and stays in their father’s house.
21. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellant beyond a reasonable doubt. She dismissed the appellant’s defence and convicted him accordingly.
22. In arriving at her decision, the learned trial magistrate found that phone number 0782499445 is what connected the two incidents of robbery and gave the investigating officer the lead to arrest the suspects who had committed both offences.
23. The trial court found the defence by the appellant not persuasive enough because the details needed to assure the court that the appellant and his witness DW 2 were together at the time of the alleged offence were not provided. She dismissed the assertions by the appellant that he was at home with his sister DW 2 and also that the PC Koross had asked him for money in order to release him as unbelievable.
24. The appellant submits that the offence against the complainant was committed at night and the alleged identification was under difficult circumstances and that the intensity of light at the place where PW 1 and PW 2 allegedly met him was not given. He cites the case of . He submits that the complainant and PW 2 did not provide the description of the robbers to the police and that was why it took so long for him to be arrested. That his arrest was not in connection with the robbery against the complainant herein but for a different incident.
25. The respondent submitted that PW 1 and PW 2 interacted with the appellant for a few minutes when they met near the university gate before they left together and that the area which is a junction has good lighting. Further that they were also able to identify him at the identification parade.
26. Learned counsel therefore submits that the trial court was satisfied that PW 1 and PW 2 were reliable witnesses and properly identified the appellant. He cited inter alia the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR) where the Court of Appeal stated thus regarding identification:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered (see R. v.Turnbull [1976] 63 Cr. App. R.132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.”
27. I have considered the grounds in support of the appeal, submissions by the appellant and the respondent and the judgment of the trial court. The issues upon which this appeal rests are: 1) whether or not there was proper identification of the appellant by PW 1 and PW 2 as one of the robbers, 2) whether or not there was evidence of mobile phone communication between PW 1 and the appellant and that the appellant’s phone received money from PW 1’s phone during the night and, 3) whether on the whole the offence of robbery with violence under section 296(2) was proved against the appellant beyond a reasonable doubt.
28. It is the appellant’s contention that the offence of robbery with violence was not proved against him beyond a reasonable doubt. We now need to consider the ingredients to ascertain whether the offence was proved beyond a reasonable doubt as found by the learned trial magistrate.
29. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] eKLR.
30. The present case is hinged on all the three elements of the offence, that the appellant was in company of two other people that is, they were more than one; second that they used violence upon the complainant and third, they were armed with offensive weapons namely a knife and hammer.
31. As provided for under section 295 PC and explained in the case of Johana Ndungu v Republic [1996] eKLR, in an offence of robbery with violence, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2).
32. On the element of theft, the complainant said that he lost a camera, the camera charge and a mobile phone, together with the bag in which the items were being carried. He also said he lost some KShs 450/= which was transferred from his phone number 0701 966 713 to phone number 0782 499 445. I do not think much turns on the issue of the complainant losing these items to the robbers. The appellant started his submissions by stating that he did not dispute that the robbery took place. What he disputed was that he was involved.
33. What is of interest is mobile phone number 0782 499 445 because of its centrality in this case. It is an important number because PW 1 said it was the number that called him requesting for photography services. He also confirmed that it was not the number that the person whom he later allegedly identified as the appellant called him on. PW 1 also said that this was the number to which money, KShs 450/= was sent from his phone number 0701 966 713 on the material night after he had been robbed of his phone and forced to reveal his password and PIN. He referred to an M-Pesa statement showing that transaction. That M-Pesa statement showing the account holder as Boniface Karanja Mungei indeed the transfer of the funds was done between 22.05.28 Hrs and 22.05.29 Hrs. This was the time after the attack upon the complainant had taken place. In the statement, the number to which the money was sent 0782 499 445 is shown as unregistered user. It does not show that it was registered in the name of the appellant. PW 1 having said that the person who called him on that number was not the appellant, evidence to connect the appellant and the number must be given.
34. The investigating officer alleged that the number 0782 499 445 was for the person who was sent to pick PW 1. However, this evidence is contrary to that of PW 1 who said that the person who came to pick him called him using a different number which he could not recall since his phone had been stolen. That contradiction is material and it was not resolved by the prosecution.
35. The investigating officer also alleged that Morgan was called by number 0782 499 445 and that this was the same number that called PW 1. However, Morgan, PW 5 never mentioned this number in his evidence. He said that the numbers that called him were 0106938483 and 0106829275. The investigating officer did not explain how he established that this was the number used to call Morgan because Morgan’s mobile phone call data was never made available to court as evidence.
36. As found by the learned trial magistrate, the primary connection between the appellant and PW 1 was mobile phone number 07822499445 which PW 1 said called him first. In spite of the mobile phone number 0782 499 445 being central in the arrest of the appellant, there was no evidence linking him to the number. No witness from Airtel, a mobile service provider for that number was made available to testify. What I saw in the proceedings was that on 9th March 2023, the learned prosecution counsel informed the court that the report from the Liaison officer had minor changes and for that reason he was not able to give evidence. The question is, which were these minor changes? This was the person to provide the details concerning the transactions on phone number 0782 499 445 on whether indeed it communicated with PW 1, the money allegedly sent from PW 1’s number to it and who the subscriber of the number was. These were material issues required to prove the prosecution’s case that the appellant was indeed involved in the robbery.
37. In my view, since the prosecution was required to prove the appellant guilty beyond any reasonable doubt, the unexplained failure of the prosecution to make available the Liaison Officer in court to testify even after he attended court created sufficient doubt, on his intended testimony, especially when the prosecution counsel said that his report had some errors. In that case the court was entitled to make an adverse inference that his or her evidence would most likely be unfavorable to the prosecution’s case had he testified especially since the other evidence was barely sufficient to prove the case beyond a reasonable doubt. I therefore draw such adverse inference relying on the case of Bukenya v Uganda (1973) E.A.
38. On the issue of identification of the appellant PW 1 and PW 2 said that they identified the appellant at the place where they met near the university as there were security lights there and that each of them picked out the appellant at an identification parade.
39. In the proceedings before the trial court, there was no inquiry by the court of the circumstances under which the identification was made. The fact that they said there were security lights around cannot tell the intensity of the lighting and how close to the light they were. From the evidence it is apparent that the people who came for them had already planned to rob them, it means that they would take all measures to conceal their open identity. Indeed, PW 1 and PW 2 said that the rider had on a mask which in the circumstances I believe was part of concealing his identity. It is very unlikely that the appellant would have left himself in the open to be freely identified. In the case cited by the appellant of Wamunga v Republic [1989] KECA 47 (KLR) the Court of Appeal stated that;
[W]here the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be the basis of a conviction.
40. It has thus been held that before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him (see R v Turnbull [1976] 3 ALL ER 549).
41. One other issue about identification of the attackers is that whereas PW 1 and PW 2 said in their respective testimonies that the person who picked then outside the university came with a rider, the investigating officer in his evidence said that the rider was alone. He said as follows:
“Because it was late at night, he went with his friend as mentioned. They met the person who had a motorcycle outside the university gate. The motorcycle had a red colour. He met the complainant and told them he had been sent… The rider said he wanted to go for short call that is when the other three showed up. The complainant had a bag which had a camera and charger, he had his phone in his trouser pocket. El Nathan had a phone. El Nathan ran away into the coffee. He left Boniface being attacked…”
42. This evidence by the investigating officer shows that in their statements to the police PW 1 and PW 2 said that the rider who picked them at the university gate was alone. However, along the way, he said he wanted to go for a short call and three other people showed up and attacked the complainant as El Nathan ran away. That report is not consistent with their evidence that they were picked by two people, the rider and the appellant. That inconsistence is quite material to the case but it was not resolved. The issue is, why would they allege that they were picked by two people when he was only one. The reason is, their change of version was meant to isolate the appellant from the rider because the rider had on a mask and so, as they said they could not have identified him properly. Yet, according to the investigating officer, this rider was the only one who picked them. If he had a mask on as they said, then they did not identify him as the appellant.
43. One other issue that creates doubt in their identification story is, neither PW 1 nor PW 2 stated in what position the three of then sat on the passenger seat of the motor cycle. this was material because, their position would have enabled both of them or one of them to clearly see and mark the other person or of they both sat ahead of him then they would not have easily identified him. However, from the evidence of the investigating officer, it appears that there was only the rider who obviously sat in front of them. From the evidence of PW 1 and PW 2, the rider had on a mask. Under those circumstances, I find that they did not have a good opportunity to identify him.
44. I have considered the judgment of the trial court and I find that without analyzing the evidence of identification, the learned trial magistrate found that the same was sufficient to convict the appellant. There is no mention of the circumstances under which the appellant was identified and that was a lack of direction on the part of the learned trial magistrate. I find that the evidence of identification of the appellant by PW 1 and PW 2 during the material night is not reliable.
45. The evidence of identification of the appellant by PW 1 and PW 2 at the parade conducted by PW 4 could not have been foolproof if the two witnesses had not properly identified the robbers earlier. I agree with the appellant’s contention that the fact that there was no prior description given of him by PW 1 and PW 2 to the police yet he was arrested much later, some four months down the line made the evidence of the identification parade weak. As was held in the case cited by the prosecution counsel of Francis Njiru Kariuki & 7 others (supra), among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all. In this case, no such description was given at all. The appellant said that there was a possibility that his photographs had been taken and shown to PW 1 and PW 2 prior to the ID parade being carried out. That contention is not without merit given that DCI officers are known to parade suspects and take photographs of them while holding some boards that give their full identities. The likelihood that this happened in the present case cannot be swept under the carpet given the public interest in the case for which the appellant was arrested, the robbery and killing of a Kirinyaga university student.
46. I therefore find the evidence of identification at the parade to be worthless.
47. Upon analyzing the evidence, the learned trial magistrate disbelieved the story tendered by the appellant and found that the prosecution had proved its case against him beyond a reasonable doubt and convicted him accordingly. However, my evaluation of the evidence above leads to the conclusion that this finding by the learned trial magistrate was not correct. I find that the prosecution’s case was full of gaps and was not capable and did not prove the offence against the appellant beyond a reasonable doubt.
48. Consequently, the appeal is allowed and the conviction of the appellant for the offence of robbery with violence under section 296(2) of the Penal Code is set aside and substituted with an acquittal.
49. The appellant is set at liberty forthwith unless otherwise lawfully held.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 11th day of August 2025 in the presence of:
The appellant in person from Nyeri prison.
Ms Komu prosecution counsel for the respondent
Job: Court assistant.