(From Original Conviction and Sentence of Hon. Martha Mutuku (C.M.) in the Chief Magistrate’s Court at Mombasa, in Criminal Case No. E2316 of 2021 on 13 th June, 2023)
Introduction
The Appellant was charged before the Court with the offence of:-
CHARGE: Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of the same being that on on the 30 th day of August, 2021 at Majengo Mapya in Likoni Sub- County within Mombasa county jointly with others not before this court while armed with a dangerous weapon namely rungu robbed Kelvin Mgendi his mobile phone make Tecno Camon 11 valued at Kshs 15,000 and cash Kshs 1,500 and immediately before the time of such robbery threatened to use actual violence against the said Kelvin Mgendi Mgendi.
He denied the charges and the trial court put down the case for hearing. The Respondent called four (4) witnesses and at the close of the Respondent’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced to death.
Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
THAT the learned trial magistrate erred in law and fact in convicting me in absence of any cogent and tangible evidence.
THAT the learned trial magistrate erred in law and fact by forming a conviction in reliance of single witness' testimony that was not substantiated by an independent witness.
THAT the learned trial magistrate erred in law and fact by relying on contradictive, inconsistent and unsubstantiated witness' account of the allegation levelled against me.
THAT the learned trial magistrate erred in law and fact by failing to put into consideration the period I spent in remand while on trial.
THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence by failing to take into consideration my unshaken defence.
For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed and conviction quashed and sentence be set aside and the Appellant be set at liberty.
Evidence
PW 1 Kelvin Mgendi John , testified that at the time of the offence he resided in Likoni and was a student. On 15 th August, 2021 he was given Kshs 1,550/- at around 6 am and 7 am, to deliver the same to his brother’s school principal. While escorting his brother to school, they opted for a short cut where they encountered masked men. Attempting to avoid them, he took a detour but one of the men suddenly tripped him and caused him to fall.
He told the court that the man was joined by others who robbed him of the Techno spark worth Kshs 10,500/- and Kshs 1,500/- which was for fees and Kshs 50 was for lunch. The accused person had a panga and they used the blunt side to hit him on his back. The men were four in number. Before beating him up, the accused person threatened to cut him with a panga. The offence took place during daytime.
He testified that he was able to recognized Rajab Athuman. He also recognized another face, because he had attacked him earlier. Rajab resided in their village. His parents are known to the witness as they had been neighbors for a long time. They all ran away after attacking him. He went back home and reported the matter to his father and told him that he had been attacked by Rajab and his friend. They went back to scene and found the panga which they took to the police station. When he was being attacked, his younger brother jumped and hid in a trench. The case was reported to Likoni Police station. The accused person disappeared for sometime and was later traced and charged with the offence.
When cross examined he stated that the accused person was previously known to him. They had no prior grudges. The phone was never recovered and he had misplaced the purchase receipt although he could get a copy from the shop.
PW 2 John Gathuri , testified that on 30 th August, 2021, he was at home at 6 am, Kelvin was taking his brother Geoffrey to school. he gave Kshs 1,550/- to Kelvin being Geoffrey’s fees. They came back suddenly and told him that they had been robbed of the phone and the money he had given them. He left his house and went to the scene of the alleged crime. He did not find the accused person at the scene but he recovered a panga which he took to the police station and recorded the same.
The panga with a black handle was marked as MFI 1. He also reported the case at the Likoni Police Station. He held no grudges against the accused person. Rajab was known to him as he was a village elder. The money and the phone were never recovered.
When cross examined he stated that he did not witness the offence. His children told him about the offence. He only recovered a panga at the alleged scene of crime. It was alleged by PW1 that the accused person had a panga when he attacked the complainant. No one came to rescue PW 1. He could not recall the date of the offence. He reported the matter to the police on the same day.
PW 3 J.M , a minor testified that PW 1 was his elder brother and PW 2 was his father. On the material day, he could not recall the date, he was going to school with PW 1 in the morning, they used a short cut as they usually do, when they got to the junction, they saw the accused person approaching in the company of other persons, they were five in number. Kelvin told him that they should take the right turn (the minor demonstrated the same on the table).
He told the court that Rajab came and stopped infront of his brother tripping him. His brother fell to the ground. Rajab had a panga that was hidden in his trouser. As he stood behind them he saw Rajab threatening the brother with the panga. While on the ground, his brother gave the accused person his mobile phone and money. He did not know how much it was but it was more than a thousand shillings. He only saw the brother give the accused person the money and the phone.
He told the court that he ran and jumped over a certain trench. He ran away and later followed his brother home to tell his father of the incidence. His father came back to the scene and recovered a panga. His father then escorted him to school. He identified Rajab in court as the person who attacked his brother. He was a person well known to him as he used to visit his home. Rajab was their neighbor and that day he was wearing a black jacket. He saw him very well.
When cross examined he stated that he witnessed the offence. Their family and Rajab’s family are well known to each other.
PW 4 Police Service No. 253443 PC Boniface Mulinge based at Likoni Police Station told the court that he was the investigating officer in this matter. On 22 nd November, 2021 he was at the officer when came across the current case. He noted down a case that had already been reported. One suspect, Rajab Athuman by name had been arrested in connection to the said crime the previous day on the 21 st November, 2021. There was a reference OB, he called the Complainant Kelvin Mgendi who went to the Police Station with his father and his younger brother Geoffrey. He recorded their statements and the father gave him the panga. The after told him that he had collected the panga at the scene of crime which he handed to the witness. He identified the panga in court and produced it as Pex 2.
He told the court that he then recorded the witness statement of the accused person, the complainant and his witnesses. From his investigation, he established that the accused person with others not before court had violently robbed the complainant and taken his mobile phone and money. He also established that Rajab was a neighbor is well known to PW 1. He identified him in court.
When cross examined he stated that the offence took place in August. The accused person was brought to the station in November. The 1 st report was made on 30 th August, 2021 and the witness statements are made much later. The OB details are in investigation diary. He did not dust the panga for finger prints. It had already been handled by 3 rd parties.
When reexamined he stated that it is indicated that the offence took place on 30 th August, 2021 with the relevant OB being OB 14/30/8/2021.
Appellant/ Defence Case
The Appellant’s case was that DW 1 Rajab Athuman , told the court that he stayed at Likoni, Majengo Mapya and he was not employed. He recalled that on 21 st November, 2021, he was chewing khat in the company of his friend a lady by the name of Felista who is the sister to the complainant when the Complainant’s father came with people and said that he was the one who was misleading the daughter. He was escorted to the police station and later arraigned in court. He was framed up with charges before court. He did not rob the complainant at all. He had no grudges against the complainant or his family who were their neighbors at Likoni. Kelvin said that he was robbed by another person not him.
Analysis and Determination
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32 . In this case the court stated-;
“The duty of the 1 st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “ an appellant on a 1 st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
I have considered the grounds of appeal, evidence adduced in the lower court. I find the following broad issues for determination: -
Whether or not the Prosecution proved its case beyond reasonable doubt;
Whether the sentence of death was manifestly harsh, inhuman and excessive considering the overall circumstance of the case
Whether or not the Prosecution proved its case beyond reasonable doubt
The offence of Robbery with Violence is provided for under the Section 296(2) of the Penal Code as follows:-
“296.Punishment of robbery
(1)…….
(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death..”
The ingredients of this offence were aptly discussed by Cockar, C.J., Akiwumi & Shah, JJ.A. in the case of “Johana Ndungu – Versus - Republic CRA. 116/1995, [1996] eKLR” where the Court of Appeal in Mombasa stated as follows: -
“In order to appreciate properly as to what acts, constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is ‘use of or threat to use’ actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore -described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved, will constitute the offence under the subsection:
If the offender is armed with any dangerous or offensive weapon or instrument; or
If he is in company with one or more other person or persons; or
If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.”
[See also Oluoch v Republic [1985] KLR].
Similarly, in the Court of Appeal case of “Criminal Appeal No. 300 of 2007, Dima Denge & Others – Versus - Republic (2013) eKLR” , the learned Bench stated as follows: -
“the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”
In this case, PW1 unequivocally testified that the accused, along with others not before the court, assaulted him and stole his phone and the money intended for his brother’s school fees. This account was corroborated by PW3, the minor whom PW1 was escorting to school at the time of the attack. Furthermore, PW4, the investigating officer, confirmed through his findings that the accused, in collaboration with others still at large, had violently robbed the complainant of his mobile phone and cash. He also verified that the accused, Rajab, was a neighbor well known to PW1, who subsequently identified him in court.
Accordingly, the prosecution proved beyond reasonable doubt that; (i) the offender was armed with dangerous and offensive weapon or instrument; (ii) the offender were in company with one or more person or persons; and (iii) at or immediately before or immediately after the time of the robbery the offenders wounded, beat, strike or used other personal violence against PW1.[ See “Paul Njoroge Ndungu – Versus - Republic [2021] eKLR” ]
It is given that in a case as this, identification is key given that it is the link that connects an accused person to an alleged act that constitutes an offence. Identification has been defined by the Black’s Law Dictionary 2 nd Edition as:
Proof of identity; the proving that a person, subject, or article before the court is the very same that he or it is alleged, charged, or reputed to be; as where a witness recognizes the prisoner at the bar as the same person whom he saw committing the crime; or where handwriting, stolen goods, counterfeit coin, etc., are recognized as the same which once passed under the observation of the person identifying them –‘Identitas vera colligitur ex multitu- dine signorum.
Nonetheless, as the incident occurred at night, care should be taken to ensure the appellant was positively identified as the perpetrators of the offence. The court in “Wamunga – Versus - Republic (1989) KLR 424 at 426” had this to say: -
“Where 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 make it the basis of a conviction.”
I have interrogated the circumstances herein, and from the evidence of PW1 on cross examination testified that he knew the appellant for a long time. Therefore, the identification of the Appellant as the perpetrator cannot be in doubt. Sections 111(1) and 119 of the Evidence Act. These sections stipulate as follows:
“111.(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:
Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”
“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”.”
From the evidence adduced by the appellant herein, nothing adduced to cast any shadow of doubt upon the evidence by the prosecutor.
Whether the sentence of death was manifestly harsh, inhuman and excessive considering the overall circumstance of the case?
The appellant was sentenced to death which I find that the same is lawful as given that nothing has been shown that the trial court acted upon wrong principles or overlooked some material factors or considered irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle [See “Shadrack Kipkoech Kogo – Versus - R.” , and “Wilson Waitegei – Versus - Republic [2021] eKLR” ].
In the case of “Joseph Ochieng Osuga – Versus - Republic [2021] eKLR” this court stated that the power to interfere with a sentence imposed by the trial court is limited by precedent except where certain conditions are met. This court cited the Court of Appeal in “Bernard Kimani Gacheru – Versus - Republic [2002] eKLR” where it was stated that: -
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
Bearing the above holding and having in mind the circumstances of this case, the question is whether there is any lawful reason to interfere with the discretion of the trial court in passing sentence.
The principles upon which an appellate court will act in exercising its discretion to review or alter a sentence imposed by the trial court were settled in the case of “Ogolla s/o Owuor – Versus - R, (1954) EACA 270” wherein the Court of Appeal stated as follows: -
“ The court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R v Shershowsky (1912) CCA 28TLR 263).”
In the case of “Wanjema - Versus - R [1971] EA 493, 494” , the court held that the appellate court is entitled to interfere with the sentencing discretion of the trial court in view of plain error of omnibus sentence and the illegality of the sentence.
Sentencing is a discretion of the trial court. In “Ambani – Versus - Republic (1990) KLR 161” , Bosire J. (as he then was) stated that a sentence imposed on an accused person must be commensurate with the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirely before settling for any given sentence.
The purpose of sentence is usually to disapprove or denounce unlawful conduct as a deterrent to deter the offender from committing the offence, to separate offenders from society if necessary to assist in rehabilitation of offenders, and in rehabilitation by providing for reparation for harm done to victims in particular to and to society in general. This is also seen as promoting a source of responsibility in offenders. The question is whether this court should interfere with the sentence.
In this case, the trial magistrate opined that her hands were tied to pass the death penalty. The current jurisprudence is that though the maximum penalty for robbery with violence is death, the court has the discretion to impose any other penalty based on the circumstances of the case. In this regard I find that the Learned Trial Magistrate ought to have considered the mitigation and the particular circumstances.
In particular I not that the robbery is not what what we can describe as particularly vicious. No violence was used and the complainant did not sustain any physical injury. They were of course scared. I therefore find that it was not proper to mete out the maximum penalty .
Conclusion and Disposition
Having found that all the grounds of appeal on conviction have failed I hereby consequently find the Appeal on the conviction is unmerited and hereby uphold the trial courts finding on the conviction
I shall however interfere with the sentence of the Honourable Trial Court and set aside the death sentence and substitute the same with a prison term of 20 years. The time to start running from the date he was first arraigned in court .
The appeal therefore succeeds partially.
IT IS SO ORDERED ACORDINGLY.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…24 th ………DAY OF ………JULY……………….……., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………SIRIMA……………State Counsel;
APPELLANT IN PERSON
BEBORA COURT ASSISTANT.
Introduction
The Appellant was charged before the Court with the offence of:-
CHARGE: Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of the same being that on on the 30 th day of August, 2021 at Majengo Mapya in Likoni Sub- County within Mombasa county jointly with others not before this court while armed with a dangerous weapon namely rungu robbed Kelvin Mgendi his mobile phone make Tecno Camon 11 valued at Kshs 15,000 and cash Kshs 1,500 and immediately before the time of such robbery threatened to use actual violence against the said Kelvin Mgendi Mgendi.
He denied the charges and the trial court put down the case for hearing. The Respondent called four (4) witnesses and at the close of the Respondent’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted and sentenced to death.
Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
THAT the learned trial magistrate erred in law and fact in convicting me in absence of any cogent and tangible evidence.
THAT the learned trial magistrate erred in law and fact by forming a conviction in reliance of single witness' testimony that was not substantiated by an independent witness.
THAT the learned trial magistrate erred in law and fact by relying on contradictive, inconsistent and unsubstantiated witness' account of the allegation levelled against me.
THAT the learned trial magistrate erred in law and fact by failing to put into consideration the period I spent in remand while on trial.
THAT the learned trial magistrate erred in law and fact by finding my conviction and sentence by failing to take into consideration my unshaken defence.
For the reasons advanced in his Petition of Appeal, the Appellant prayed the appeal be allowed and conviction quashed and sentence be set aside and the Appellant be set at liberty.
Evidence
PW 1 Kelvin Mgendi John , testified that at the time of the offence he resided in Likoni and was a student. On 15 th August, 2021 he was given Kshs 1,550/- at around 6 am and 7 am, to deliver the same to his brother’s school principal. While escorting his brother to school, they opted for a short cut where they encountered masked men. Attempting to avoid them, he took a detour but one of the men suddenly tripped him and caused him to fall.
He told the court that the man was joined by others who robbed him of the Techno spark worth Kshs 10,500/- and Kshs 1,500/- which was for fees and Kshs 50 was for lunch. The accused person had a panga and they used the blunt side to hit him on his back. The men were four in number. Before beating him up, the accused person threatened to cut him with a panga. The offence took place during daytime.
He testified that he was able to recognized Rajab Athuman. He also recognized another face, because he had attacked him earlier. Rajab resided in their village. His parents are known to the witness as they had been neighbors for a long time. They all ran away after attacking him. He went back home and reported the matter to his father and told him that he had been attacked by Rajab and his friend. They went back to scene and found the panga which they took to the police station. When he was being attacked, his younger brother jumped and hid in a trench. The case was reported to Likoni Police station. The accused person disappeared for sometime and was later traced and charged with the offence.
When cross examined he stated that the accused person was previously known to him. They had no prior grudges. The phone was never recovered and he had misplaced the purchase receipt although he could get a copy from the shop.
PW 2 John Gathuri , testified that on 30 th August, 2021, he was at home at 6 am, Kelvin was taking his brother Geoffrey to school. he gave Kshs 1,550/- to Kelvin being Geoffrey’s fees. They came back suddenly and told him that they had been robbed of the phone and the money he had given them. He left his house and went to the scene of the alleged crime. He did not find the accused person at the scene but he recovered a panga which he took to the police station and recorded the same.
The panga with a black handle was marked as MFI 1. He also reported the case at the Likoni Police Station. He held no grudges against the accused person. Rajab was known to him as he was a village elder. The money and the phone were never recovered.
When cross examined he stated that he did not witness the offence. His children told him about the offence. He only recovered a panga at the alleged scene of crime. It was alleged by PW1 that the accused person had a panga when he attacked the complainant. No one came to rescue PW 1. He could not recall the date of the offence. He reported the matter to the police on the same day.
PW 3 J.M , a minor testified that PW 1 was his elder brother and PW 2 was his father. On the material day, he could not recall the date, he was going to school with PW 1 in the morning, they used a short cut as they usually do, when they got to the junction, they saw the accused person approaching in the company of other persons, they were five in number. Kelvin told him that they should take the right turn (the minor demonstrated the same on the table).
He told the court that Rajab came and stopped infront of his brother tripping him. His brother fell to the ground. Rajab had a panga that was hidden in his trouser. As he stood behind them he saw Rajab threatening the brother with the panga. While on the ground, his brother gave the accused person his mobile phone and money. He did not know how much it was but it was more than a thousand shillings. He only saw the brother give the accused person the money and the phone.
He told the court that he ran and jumped over a certain trench. He ran away and later followed his brother home to tell his father of the incidence. His father came back to the scene and recovered a panga. His father then escorted him to school. He identified Rajab in court as the person who attacked his brother. He was a person well known to him as he used to visit his home. Rajab was their neighbor and that day he was wearing a black jacket. He saw him very well.
When cross examined he stated that he witnessed the offence. Their family and Rajab’s family are well known to each other.
PW 4 Police Service No. 253443 PC Boniface Mulinge based at Likoni Police Station told the court that he was the investigating officer in this matter. On 22 nd November, 2021 he was at the officer when came across the current case. He noted down a case that had already been reported. One suspect, Rajab Athuman by name had been arrested in connection to the said crime the previous day on the 21 st November, 2021. There was a reference OB, he called the Complainant Kelvin Mgendi who went to the Police Station with his father and his younger brother Geoffrey. He recorded their statements and the father gave him the panga. The after told him that he had collected the panga at the scene of crime which he handed to the witness. He identified the panga in court and produced it as Pex 2.
He told the court that he then recorded the witness statement of the accused person, the complainant and his witnesses. From his investigation, he established that the accused person with others not before court had violently robbed the complainant and taken his mobile phone and money. He also established that Rajab was a neighbor is well known to PW 1. He identified him in court.
When cross examined he stated that the offence took place in August. The accused person was brought to the station in November. The 1 st report was made on 30 th August, 2021 and the witness statements are made much later. The OB details are in investigation diary. He did not dust the panga for finger prints. It had already been handled by 3 rd parties.
When reexamined he stated that it is indicated that the offence took place on 30 th August, 2021 with the relevant OB being OB 14/30/8/2021.
Appellant/ Defence Case
The Appellant’s case was that DW 1 Rajab Athuman , told the court that he stayed at Likoni, Majengo Mapya and he was not employed. He recalled that on 21 st November, 2021, he was chewing khat in the company of his friend a lady by the name of Felista who is the sister to the complainant when the Complainant’s father came with people and said that he was the one who was misleading the daughter. He was escorted to the police station and later arraigned in court. He was framed up with charges before court. He did not rob the complainant at all. He had no grudges against the complainant or his family who were their neighbors at Likoni. Kelvin said that he was robbed by another person not him.
Analysis and Determination
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32 . In this case the court stated-;
“The duty of the 1 st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “ an appellant on a 1 st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
I have considered the grounds of appeal, evidence adduced in the lower court. I find the following broad issues for determination: -
Whether or not the Prosecution proved its case beyond reasonable doubt;
Whether the sentence of death was manifestly harsh, inhuman and excessive considering the overall circumstance of the case
Whether or not the Prosecution proved its case beyond reasonable doubt
The offence of Robbery with Violence is provided for under the Section 296(2) of the Penal Code as follows:-
“296.Punishment of robbery
(1)…….
(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death..”
The ingredients of this offence were aptly discussed by Cockar, C.J., Akiwumi & Shah, JJ.A. in the case of “Johana Ndungu – Versus - Republic CRA. 116/1995, [1996] eKLR” where the Court of Appeal in Mombasa stated as follows: -
“In order to appreciate properly as to what acts, constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is ‘use of or threat to use’ actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore -described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved, will constitute the offence under the subsection:
If the offender is armed with any dangerous or offensive weapon or instrument; or
If he is in company with one or more other person or persons; or
If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.”
[See also Oluoch v Republic [1985] KLR].
Similarly, in the Court of Appeal case of “Criminal Appeal No. 300 of 2007, Dima Denge & Others – Versus - Republic (2013) eKLR” , the learned Bench stated as follows: -
“the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”
In this case, PW1 unequivocally testified that the accused, along with others not before the court, assaulted him and stole his phone and the money intended for his brother’s school fees. This account was corroborated by PW3, the minor whom PW1 was escorting to school at the time of the attack. Furthermore, PW4, the investigating officer, confirmed through his findings that the accused, in collaboration with others still at large, had violently robbed the complainant of his mobile phone and cash. He also verified that the accused, Rajab, was a neighbor well known to PW1, who subsequently identified him in court.
Accordingly, the prosecution proved beyond reasonable doubt that; (i) the offender was armed with dangerous and offensive weapon or instrument; (ii) the offender were in company with one or more person or persons; and (iii) at or immediately before or immediately after the time of the robbery the offenders wounded, beat, strike or used other personal violence against PW1.[ See “Paul Njoroge Ndungu – Versus - Republic [2021] eKLR” ]
It is given that in a case as this, identification is key given that it is the link that connects an accused person to an alleged act that constitutes an offence. Identification has been defined by the Black’s Law Dictionary 2 nd Edition as:
Proof of identity; the proving that a person, subject, or article before the court is the very same that he or it is alleged, charged, or reputed to be; as where a witness recognizes the prisoner at the bar as the same person whom he saw committing the crime; or where handwriting, stolen goods, counterfeit coin, etc., are recognized as the same which once passed under the observation of the person identifying them –‘Identitas vera colligitur ex multitu- dine signorum.
Nonetheless, as the incident occurred at night, care should be taken to ensure the appellant was positively identified as the perpetrators of the offence. The court in “Wamunga – Versus - Republic (1989) KLR 424 at 426” had this to say: -
“Where 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 make it the basis of a conviction.”
I have interrogated the circumstances herein, and from the evidence of PW1 on cross examination testified that he knew the appellant for a long time. Therefore, the identification of the Appellant as the perpetrator cannot be in doubt. Sections 111(1) and 119 of the Evidence Act. These sections stipulate as follows:
“111.(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:
Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”
“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”.”
From the evidence adduced by the appellant herein, nothing adduced to cast any shadow of doubt upon the evidence by the prosecutor.
Whether the sentence of death was manifestly harsh, inhuman and excessive considering the overall circumstance of the case?
The appellant was sentenced to death which I find that the same is lawful as given that nothing has been shown that the trial court acted upon wrong principles or overlooked some material factors or considered irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle [See “Shadrack Kipkoech Kogo – Versus - R.” , and “Wilson Waitegei – Versus - Republic [2021] eKLR” ].
In the case of “Joseph Ochieng Osuga – Versus - Republic [2021] eKLR” this court stated that the power to interfere with a sentence imposed by the trial court is limited by precedent except where certain conditions are met. This court cited the Court of Appeal in “Bernard Kimani Gacheru – Versus - Republic [2002] eKLR” where it was stated that: -
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
Bearing the above holding and having in mind the circumstances of this case, the question is whether there is any lawful reason to interfere with the discretion of the trial court in passing sentence.
The principles upon which an appellate court will act in exercising its discretion to review or alter a sentence imposed by the trial court were settled in the case of “Ogolla s/o Owuor – Versus - R, (1954) EACA 270” wherein the Court of Appeal stated as follows: -
“ The court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R v Shershowsky (1912) CCA 28TLR 263).”
In the case of “Wanjema - Versus - R [1971] EA 493, 494” , the court held that the appellate court is entitled to interfere with the sentencing discretion of the trial court in view of plain error of omnibus sentence and the illegality of the sentence.
Sentencing is a discretion of the trial court. In “Ambani – Versus - Republic (1990) KLR 161” , Bosire J. (as he then was) stated that a sentence imposed on an accused person must be commensurate with the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirely before settling for any given sentence.
The purpose of sentence is usually to disapprove or denounce unlawful conduct as a deterrent to deter the offender from committing the offence, to separate offenders from society if necessary to assist in rehabilitation of offenders, and in rehabilitation by providing for reparation for harm done to victims in particular to and to society in general. This is also seen as promoting a source of responsibility in offenders. The question is whether this court should interfere with the sentence.
In this case, the trial magistrate opined that her hands were tied to pass the death penalty. The current jurisprudence is that though the maximum penalty for robbery with violence is death, the court has the discretion to impose any other penalty based on the circumstances of the case. In this regard I find that the Learned Trial Magistrate ought to have considered the mitigation and the particular circumstances.
In particular I not that the robbery is not what what we can describe as particularly vicious. No violence was used and the complainant did not sustain any physical injury. They were of course scared. I therefore find that it was not proper to mete out the maximum penalty .
Conclusion and Disposition
Having found that all the grounds of appeal on conviction have failed I hereby consequently find the Appeal on the conviction is unmerited and hereby uphold the trial courts finding on the conviction
I shall however interfere with the sentence of the Honourable Trial Court and set aside the death sentence and substitute the same with a prison term of 20 years. The time to start running from the date he was first arraigned in court .
The appeal therefore succeeds partially.
IT IS SO ORDERED ACORDINGLY.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…24 th ………DAY OF ………JULY……………….……., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………SIRIMA……………State Counsel;
APPELLANT IN PERSON
BEBORA COURT ASSISTANT.