(Being an appeal against the decision of Hon Rose Ongira (SRM) delivered 4 th June 2025 in the Chief Magistrate Court at Meru (Nkubu Magistrates Court) in Criminal Case No MCCR E046 of 2024)
1. The Appellant, Rashid Issa was charged with the offence of Robbery with Violence contrary Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence as stated in the charge sheet were that on the 31 st October 2023 at Nkubu Township in Taita Location in Imenti South Sub- county within Meru County, jointly with others not before the court, being armed with a dangerous weapon namely Kitchen knife robbed Sephirah Nkirote Mbii of her mobile phone number make Tecno Camon 20 valued Kshs 24,700 and cash Kshs 14,500.
2. On the Alternative Count, the Appellant was charged with the offence of handling stolen property contrary to Section 322(1) of the Penal Code. The particulars of the offence as per the charge sheet were that on the 20 th day of December 2023 at around 1800 hours in Taita Location Imenti South Sub County in Meru County, otherwise than in the cause of stealing, the accused dishonestly retained or received one mobile phone make Tecno Camon 20 knowing or having reason to believe it to be stolen property.
3. The Appellant pleaded not guilty to both charges, and the matter proceeded to a full trial. The prosecution called five witnesses. In a nutshell, the prosecution's case was that PW1, Sephirah Nkirote Mbii, testified that on the night of 30th/31st October 2023, while asleep in her house, an intruder entered her bedroom, threatened to kill her with a knife unless she cooperated, demanded money, her ATM card and M-Pesa PIN, and slapped her after she initially provided an incorrect PIN. Upon receiving the correct PIN, the assailant transferred money from her M-Pesa account to mobile number 0704911795, registered in the name of Isaac Sendo. He also stole her Techno Camon 20 mobile phone worth 24,900, Kshs. 10,000, a black bag containing her documents and Kshs. 3,200, and a Tecno Pop 7 mobile phone belonging to her house help, PW2, Joy Mukami. PW1 reported the incident on 6th November 2023, produced her M-Pesa statement, the receipt and box for the stolen phone, and later identified the recovered phone through its IMEI number. She further testified that she was able to see the assailant's face by the light from his torch and her mobile phone, although she conceded that no identification parade was conducted. PW2 corroborated PW1's account by stating that she heard footsteps during the night, saw a man wearing a black coat and carrying a bright torch leaving the compound, though she could not positively identify him, and later discovered that her Tecno Pop 7 mobile phone had been stolen.
4. PW3, PC Kelvin Njuguna, and PW4, PC Kenan Mwiragua, testified that on 20th December 2023, while executing a warrant of arrest in an unrelated matter, they arrested the Appellant and recovered from him a Techno Camon 20 mobile phone, which was subsequently confirmed to belong to PW1 after its IMEI number matched that on the purchase box she produced. PW5, PC (W) Jackline Wangare, the investigating officer, testified that upon receiving the report, she visited the scene but found no signs of forced entry. She confirmed that the recovered phone belonged to PW1 through its IMEI number and that investigations into the M-Pesa transactions revealed that the money transferred during the robbery was sent to mobile number 0704911795, registered in the name of Isaac Sendo, the Appellant's father, although she stated that the Appellant was the actual user of the line. She further confirmed that no identification parade was conducted, as the complainant identified the Appellant after his arrest while in police custody.
5. At the conclusion of the prosecution case, the Appellant was placed on his defence, where he testified as DW1 and denied the charges. He stated that the complainant was his girlfriend for about three months and that he frequently visited and spent nights at her house with her consent. He asserted that on 29th/30th October 2023, they had spent time together before going to her house and that the money transferred to mobile number 0704911795, registered in his father's name, was voluntarily sent to him by the complainant and not obtained through robbery. He further claimed that the complainant had given him the Tecno Camon 20 mobile phone after his own phone developed a cracked screen and that she had taken his phone to a fundi for repair. The Appellant denied stealing any money or other items. He maintained that the charges were fabricated following the breakdown of their relationship after he refused to return to the complainant. He claimed that he was the complainant's lover and that she used to support him financially. He also pointed to the delayed reporting of the incident, the absence of testimony from a watchman or neighbors, the failure to recover the alleged knife, and the lack of CCTV footage or evidence of forced entry.
6. During cross-examination, the Appellant admitted that Isaac Sendo was his father and that he used the mobile number registered in his father's name, to which the impugned M-Pesa transfers were sent. However, he insisted that the complainant had voluntarily sent him the money while they were together and reiterated that the recovered mobile phone had been given to him by the complainant. He did not call any independent witness or produce any evidence to corroborate the alleged romantic relationship. DW2, Isaac Sendo, the Appellant's father, testified that the Appellant was his son and stated that, to his knowledge, the dispute arose from a failed romantic relationship between the Appellant and the complainant.
7. At the conclusion of the trial, the learned trial magistrate, in a judgment delivered on 4th June 2025, found the Appellant guilty of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code, convicted him accordingly, and marked the alternative charge as spent. Upon considering the Appellant's mitigation, the trial court, on 6th August 2025, sentenced him to life imprisonment.
8. Being dissatisfied with the conviction and sentence, the Appellant lodged the present appeal. The appeal is founded on the Petition of Appeal and the Amended Supplementary Grounds of Appeal. In the Petition of Appeal, the Appellant contends that the trial court erred in failing to find that the complainant was his girlfriend who had voluntarily given him the mobile phone, relied on a defective charge sheet, and convicted him despite the prosecution having failed to prove its case beyond reasonable doubt. In the Amended Supplementary Grounds of Appeal, the Appellant further contends that the prosecution evidence was riddled with inconsistencies and contradictions, that the offence of robbery with violence was not proved to the required standard, that he had discharged his burden under section 111 of the Evidence Act regarding the recovered mobile phone, and that the trial court erred in rejecting his defence without giving cogent reasons. He prayed that the appeal be allowed, the conviction be quashed, the sentence be set aside, and that he be set at liberty unless otherwise lawfully held.
Appellant’s Submissions
9. The Appellant submits that the prosecution failed to prove the charge of robbery with violence beyond reasonable doubt, contending that the evidence on record was riddled with material contradictions, inconsistencies and improbabilities which rendered the prosecution case unreliable. He argues that the testimonies of PW1 and PW2 were contradictory as to the time of the alleged robbery, the sequence of events, the existence of a caretaker, and the circumstances under which the offence allegedly occurred. He further submits that the complainant failed to produce medical evidence to support the alleged assault, did not promptly report the incident to either her neighbors or the police, and that the alleged weapon was never recovered or produced in evidence. The Appellant also questions the authenticity of the M-Pesa transactions, the ownership of the allegedly stolen mobile phone, and the credibility of the complainant's account, while maintaining that the trial court failed to properly consider his defence that he was in a prior romantic relationship with the complainant. In support of these submissions, the Appellant relies on Dankerai Ramkrishna Pandya v R [1957] EA, Alex Nadosoito v Republic [2020] KEHC 2736 (KLR), and Joseph Ndungu Kimanyi v Republic [1979] KLR , to argue that contradictory and unreliable evidence cannot sustain a criminal conviction.
10. The Appellant further submits that the trial court erred in law and fact by convicting him on the basis of unsafe identification evidence and by failing to find that the prosecution had not discharged its burden of proof beyond reasonable doubt. He contends that no identification parade was conducted despite his arrest occurring nearly three weeks after the alleged offence, and that the complainant's dock identification, unsupported by any prior description of the assailant, was insufficient to found a conviction. He places reliance on Francis Kariuki Njiru & 7 Others v Republic, Criminal Appeal No. 6 of 2001, Barasa v Republic [2024] KEHC 8908 (KLR), Peter Mwangi Mungai v Republic [2002] eKLR, Owen Kimotho Kiarie v Republic, Criminal Appeal No. 93 of 1983, Charles O. Maitanyi v Republic [1986] KLR, and R v Turnbull [1976] 3 All ER 549 for the proposition that identification evidence, particularly in night-time circumstances, must be subjected to the greatest scrutiny. The Appellant further relies on Philip Muiruri Ndaruga v Republic [2016] KEHC 4252 (KLR) to submit that the numerous inconsistencies in the prosecution case created reasonable doubt which ought to have been resolved in his favour.
11. Finally, the Appellant submits that the learned trial magistrate erred in both law and fact by convicting and sentencing him despite the prosecution's failure to establish all the essential ingredients of the offence under Sections 295 and 296(2) of the Penal Code. He argues that the conviction was founded on malice, hearsay and uncorroborated evidence, while his defence was dismissed without proper evaluation, thereby violating his right to a fair trial under Article 50 of the Constitution. The Appellant further contends that the sentence of life imprisonment was harsh and excessive in the circumstances, particularly where the prosecution had failed to prove its case beyond reasonable doubt. He therefore urges this Court to allow the appeal, quash the conviction, set aside the sentence, and order his immediate release.
Issue for Determination
12. Having carefully considered the Record of appeal, and the written submissions filed, this Court is of the considered view that the following issues arise for determination:
i. Whether the prosecution proved the charge of robbery with violence against the Appellant beyond reasonable doubt.
ii. Whether the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant.
Analysis and Determination
13. Having set out the background to this appeal, this Court, being the first appellate court, is under a duty to reconsider, re-evaluate and analyze the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was aptly stated by the Court of Appeal in David Njuguna Wairimu v Republic [2010] eKLR as follows:
"The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash 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."
14. On the first issue, on whether the prosecution proved the charge of robbery with violence against the Appellant beyond reasonable doubt, the Appellant was convicted of the offence of robbery with violence contrary to Sections 295 and 296(2) of the Penal Code. The starting point is the applicable legal framework. The offence of robbery with violence is provided for under Sections 295 and 296(2) of the Penal Code. It is therefore necessary to consider the provisions of Section 295 of the Penal Code, which defines robbery as follows:
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
15. In Moneni Ngumbao Mangi v. Republic, CR APP No 141 of 2005 (Mombasa), the Court stated:
"The word 'robbed' is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use or threat of actual violence to any person or property in order to obtain or retain stolen property."
16. To prove the offence of robbery with violence, the prosecution must establish the offence of robbery under Section 295 of the Penal Code together with at least one of the aggravating circumstances set out under Section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more other persons; or at or immediately before or immediately after the robbery wounded, beat, struck or used other personal violence upon the victim.
17. The court of Appeal in Oluoch v Republic [1985] KLR held that the offence is established where the prosecution proves any one of the following ingredients:
i. The offender was armed with any dangerous or offensive weapon or instrument;
ii. The offender was in the company of one or more other persons; or
iii. At or immediately before or immediately after the robbery, the offender wounded, beat, struck or used other personal violence upon the victim.
18. In the instant case, PW1 testified that on the night of 30 th /31 st October 2023, after returning home from work, she locked her house and retired to bed. At about 2.30 a.m., she was awakened by commotion and felt someone lifting her leg. The Appellant threatened to kill her unless she cooperated and demanded money, her ATM card and her M-Pesa PIN. PW1 testified that she initially gave an incorrect PIN, whereupon the assailant slapped her before she disclosed the correct one. She further stated that, as he continued threatening her with a knife, he also sent money through her Fuliza, which he transferred to mobile number 0704911795 registered in the name of Isaac Sendo. According to PW1, the assailant thereafter stole her Techno Camon 20 mobile phone valued at Kshs. 24,900, cash amounting to Kshs. 10,000, a black handbag containing personal documents and Kshs. 3,200, and a Tecno Pop 7 mobile phone belonging to her house help, PW2.
19. In Dima Denge Dima & Others Vs. Republic, Criminal Appeal No. 300 of 2007 the Court stressed this point when it 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.”
20. Having considered the ingredients of the offence of robbery with violence and the evidence on record, this Court is satisfied that the prosecution established the occurrence of the offence.
21. The Appellant further challenged the identification evidence relied upon by the prosecution. In hi submissions he stated that the complainant’s testimony was riddled with inconsistencies, including her assertion that the police did not visit the scene after the report was made, which was contrary to PW5’s evidence that she visited the scene on 6th November 2023. The Appellant argued that the complainant was the only witness who identified him as the assailant and that the alleged identification was made at night and under stressful circumstances. He contended that no prior description of the assailant was given to the police at the time of reporting, save for the mention of beards, and that no identification parade was conducted despite his arrest nearly three weeks after the alleged incident. He maintained that his identification while in police custody was unsafe and amounted to dock identification.
22. It is trite that evidence of identification, particularly where it is made in difficult circumstances such as at night, must be approached with great caution. In R v Turnbull & Others [1976] 3 All ER 549, the court emphasized that the circumstances surrounding the identification must be carefully examined, including the length of time the witness had the accused under observation, the distance between them, the lighting conditions, whether the observation was obstructed, whether the witness had previously seen the accused, and the time lapse between the initial observation and the subsequent identification.
23. Similarly, in Francis Kariuki Njiru & 7 Others v Republic, Criminal Appeal No. 6 of 2001, the Court of Appeal held that identification evidence, particularly where the incident occurred at night, must be subjected to careful examination before a conviction can safely be entered.
24. In the present case, PW1 testified that she was able to identify the Appellant during the robbery through the light from the assailant’s torch and her mobile phone. She stated that the assailant was close to her and that she was able to see his face. However, the incident occurred at approximately 2.30 a.m., when PW1 had been awakened from sleep and was under threats from a person allegedly armed with a knife. These circumstances required the Court to carefully scrutinize the reliability of the identification evidence.
25. The evidence on record further shows that PW1 and the Appellant were not strangers. The Appellant’s defence was that he had been in a romantic relationship with PW1 and had previously visited and spent nights at her house. Although PW1 disputed the nature of that relationship, the alleged prior interaction between them was relevant in considering whether the evidence amounted to recognition rather than identification of a stranger.
26. It is also significant that the Appellant was arrested nearly three weeks after the alleged robbery and PW5 confirmed that no identification parade was conducted. Instead, PW1 identified the Appellant while he was in police custody. In Samuel Kilonzo Musau v Republic [2014] eKLR, the Court of Appeal stated that an identification parade is not a scientific test but is the best practical method of achieving identification without confrontation. The purpose of an identification parade, as explained in Kinyanjui & 2 Others v Republic [1989] KLR 60 , is to provide a witness with an opportunity, under controlled and fair conditions, to identify a person whom they claim to have seen and to ensure that a proper record is made to avoid subsequent confusion..
27. In the instant case, PW3, PW4 and PW5 testified that upon the arrest of the Appellant, he was found in possession of a Tecno Camon 20 mobile phone. PW1 positively identified the phone as hers through the IMEI number, the purchase receipt and the box which she produced before court. The investigating officer confirmed that the IMEI number on the recovered phone corresponded with that of the phone reported stolen by PW1. The Appellant did not dispute being found in possession of the phone but claimed that it had been given to him by PW1 during their alleged relationship.
28. The recovery of the complainant’s mobile phone raises the issue of the doctrine of recent possession. In Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic, Criminal Appeal No. 272 of 2005 (UR), the Court of Appeal held that for the doctrine of recent possession to amount to positive proof, the prosecution must establish that the property was found in the possession of the accused; that the property was positively identified as belonging to the complainant; that the property was stolen from the complainant; and that it was recently stolen from the complainant.
29. Applying the above principles, this Court finds that the Tecno Camon 20 mobile phone was recovered from the Appellant, positively identified as belonging to PW1 through the IMEI number and receipt, and was part of the property reported stolen during the robbery.
30. Although no identification parade was conducted, the Court is satisfied that the identification evidence was corroborated by the doctrine of recent possession and the M-Pesa transaction trail. The inconsistencies identified by the Appellant relate to peripheral matters and do not go to the substance of the prosecution case. The Appellant’s explanation that the phone had been gifted to him was unsupported by any independent evidence and does not displace the inference arising from his possession of recently stolen property.
31. Further, the evidence showed that money was transferred from PW1’s M-Pesa account to a mobile number registered in the name of the Appellant’s father, which the Appellant admitted using. This evidence, considered alongside the recovery of the phone, provided additional linkage between the Appellant and the offence.
32. The Court has also considered the issue of the delayed report raised by the Appellant. In Tekerali s/o Korongozi & 4 Others v Republic (1952) 19 EACA 259 , the Court emphasized the importance of the first report as a safeguard against subsequent embellishment, coaching or fabrication. In the present case, although PW1 reported the incident on 6th November 2023, several days after the robbery, there is no evidence that the delay prejudiced the investigations or resulted in the fabrication of evidence. On the contrary, the report formed the basis of the investigations that led to the recovery of the complainant's mobile phone and the tracing of the M-Pesa transactions linking the Appellant to the offence. In the circumstances, the delay in reporting does not, of itself, render the prosecution's case unreliable.
33. Having considered the evidence in its totality, this Court finds that although the circumstances surrounding the identification of the Appellant required caution, the prosecution's case was not founded solely on the identification evidence. The identification was corroborated by the recovery of the complainant's Tecno Camon 20 mobile phone from the Appellant's possession, which was positively identified through its IMEI number and receipt, as well as the M-Pesa transaction trail linking the stolen funds to a mobile number admittedly used by the Appellant. Considered cumulatively, this evidence forms a consistent chain linking the Appellant to the offence and excludes the possibility of mistaken identity.
34. The Court has also considered the Appellant's defence that he was in a romantic relationship with PW1 and that the complainant had voluntarily given him the mobile phone and transferred the money to him. However, even if such a relationship existed, that fact alone does not explain the Appellant's possession of the complainant's mobile phone shortly after the robbery or the transfer of funds from her account in the circumstances described by the prosecution. The Appellant did not adduce any independent evidence to support his assertions. Accordingly, this Court finds that the defence was not plausible and did not cast any reasonable doubt on the prosecution's case.
35. Accordingly, having re-evaluated the evidence on record, this Court finds that the prosecution proved beyond reasonable doubt that the Appellant was responsible for the robbery and that the offence of robbery with violence contrary to Sections 295 and 296(2) of the Penal Code was established. The conviction by the trial court is therefore upheld.
36. Turning on to the second issue, as to whether the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant.
37. From the record, it is apparent that before sentencing the Appellant, the learned trial magistrate considered his mitigation, including his age, the fact that he was a young person, that the complainant had recovered her mobile phone, and that he had been in custody during the pendency of the trial. The trial court, however, considered the seriousness of the offence, noting that robbery with violence is a grave offence and that the phone was not voluntarily returned but was recovered from the Appellant upon his arrest.
38. Notably, the Appellant was found guilty of the offence of robbery with violence. The sentence applicable to the offence is provided for under Section 296(1) and (2) of the Penal Code, which provides as follows:
(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company of 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.
39. Furthermore, although Section 296(2) of the Penal Code prescribes a mandatory death sentence, courts have since departed from the mandatory nature of that sentence on the basis that it limits the Court’s discretion to consider mitigation and individual circumstances of an offender. The mandatory application of the sentence has been held to be inconsistent with an accused person’s right to a fair trial and access to justice under Articles 50 and 48 of the Constitution of Kenya, 2010, respectively, as mitigation forms an integral part of the sentencing process under Section 329 of the Criminal Procedure Code.
40. In James Kariuki Wagana v Republic [2018] eKLR , the High Court, while considering the decisions in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and William Okungu Kittiny v Republic [2018] eKLR , held that although the maximum sentence for the offence of robbery with violence remains the death penalty, the Court retains discretion to impose an appropriate sentence depending on the circumstances of each case.
41. The Appellant submitted that the prosecution failed to prove the offence of robbery with violence beyond reasonable doubt as required under Section 296(2) of the Penal Code. He argued that the essential ingredients of the offence were not established and that the State failed to discharge its burden of proof. The Appellant further maintained that the prosecution case was riddled with contradictions, hearsay, malice and allegations arising from a personal dispute between him and the complainant. He contended that the recovery of PW1’s phone and his admission that he had been at the complainant’s house did not, without more, establish his guilt. He further argued that the trial court failed to properly consider his defence before convicting him and that the sentence of life imprisonment imposed upon him was harsh and excessive in the circumstances of the case.
42. In R v Scott (2005) NSWCCA 152 , Howie J, Grove J and Barr J stated:
“There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. One of the purposes of punishment is to ensure that an offender is adequately punished, while a further purpose is to denounce the conduct of the offender.”
43. The Supreme Court in Francis Karioko Muruatetu & Another Vs. Republic, Petition No. 15 of 2015 , set out the mitigating factors to be considered in sentencing, which include the age of the offender, whether the offender is a first offender, whether the offender pleaded guilty, the offender's character and record, remorsefulness, the possibility of reform and social re-adaptation, and any other factor the court considers relevant. The Court emphasized that sentencing should be individualized, with due regard to the circumstances of both the offence and the offender.
44. Having considered the mitigating and aggravating circumstances of this case, this Court is of the view that although the offence of robbery with violence is serious and warrants a substantial custodial sentence, the sentence of life imprisonment imposed by the trial court was excessive in the circumstances. The Appellant was a young first offender, and the trial court also noted that he had been in custody during the pendency of the trial. Taking into account the period already spent in custody pursuant to Section 333(2) of the Criminal Procedure Code, this Court finds that a sentence of twenty (20) years' imprisonment is appropriate and proportionate.
45. Accordingly, the appeal against conviction is dismissed. However, the appeal against sentence succeeds to the extent that the sentence of life imprisonment is set aside and substituted with a sentence of twenty (20) years' imprisonment, to run from the date the Appellant was first remanded in custody, in compliance with Section 333(2) of the Criminal Procedure Code.
Disposition
46. In light of the foregoing analysis and findings, this Court makes the following orders:
i. This Court finds that the prosecu
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1. The Appellant, Rashid Issa was charged with the offence of Robbery with Violence contrary Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence as stated in the charge sheet were that on the 31 st October 2023 at Nkubu Township in Taita Location in Imenti South Sub- county within Meru County, jointly with others not before the court, being armed with a dangerous weapon namely Kitchen knife robbed Sephirah Nkirote Mbii of her mobile phone number make Tecno Camon 20 valued Kshs 24,700 and cash Kshs 14,500.
2. On the Alternative Count, the Appellant was charged with the offence of handling stolen property contrary to Section 322(1) of the Penal Code. The particulars of the offence as per the charge sheet were that on the 20 th day of December 2023 at around 1800 hours in Taita Location Imenti South Sub County in Meru County, otherwise than in the cause of stealing, the accused dishonestly retained or received one mobile phone make Tecno Camon 20 knowing or having reason to believe it to be stolen property.
3. The Appellant pleaded not guilty to both charges, and the matter proceeded to a full trial. The prosecution called five witnesses. In a nutshell, the prosecution's case was that PW1, Sephirah Nkirote Mbii, testified that on the night of 30th/31st October 2023, while asleep in her house, an intruder entered her bedroom, threatened to kill her with a knife unless she cooperated, demanded money, her ATM card and M-Pesa PIN, and slapped her after she initially provided an incorrect PIN. Upon receiving the correct PIN, the assailant transferred money from her M-Pesa account to mobile number 0704911795, registered in the name of Isaac Sendo. He also stole her Techno Camon 20 mobile phone worth 24,900, Kshs. 10,000, a black bag containing her documents and Kshs. 3,200, and a Tecno Pop 7 mobile phone belonging to her house help, PW2, Joy Mukami. PW1 reported the incident on 6th November 2023, produced her M-Pesa statement, the receipt and box for the stolen phone, and later identified the recovered phone through its IMEI number. She further testified that she was able to see the assailant's face by the light from his torch and her mobile phone, although she conceded that no identification parade was conducted. PW2 corroborated PW1's account by stating that she heard footsteps during the night, saw a man wearing a black coat and carrying a bright torch leaving the compound, though she could not positively identify him, and later discovered that her Tecno Pop 7 mobile phone had been stolen.
4. PW3, PC Kelvin Njuguna, and PW4, PC Kenan Mwiragua, testified that on 20th December 2023, while executing a warrant of arrest in an unrelated matter, they arrested the Appellant and recovered from him a Techno Camon 20 mobile phone, which was subsequently confirmed to belong to PW1 after its IMEI number matched that on the purchase box she produced. PW5, PC (W) Jackline Wangare, the investigating officer, testified that upon receiving the report, she visited the scene but found no signs of forced entry. She confirmed that the recovered phone belonged to PW1 through its IMEI number and that investigations into the M-Pesa transactions revealed that the money transferred during the robbery was sent to mobile number 0704911795, registered in the name of Isaac Sendo, the Appellant's father, although she stated that the Appellant was the actual user of the line. She further confirmed that no identification parade was conducted, as the complainant identified the Appellant after his arrest while in police custody.
5. At the conclusion of the prosecution case, the Appellant was placed on his defence, where he testified as DW1 and denied the charges. He stated that the complainant was his girlfriend for about three months and that he frequently visited and spent nights at her house with her consent. He asserted that on 29th/30th October 2023, they had spent time together before going to her house and that the money transferred to mobile number 0704911795, registered in his father's name, was voluntarily sent to him by the complainant and not obtained through robbery. He further claimed that the complainant had given him the Tecno Camon 20 mobile phone after his own phone developed a cracked screen and that she had taken his phone to a fundi for repair. The Appellant denied stealing any money or other items. He maintained that the charges were fabricated following the breakdown of their relationship after he refused to return to the complainant. He claimed that he was the complainant's lover and that she used to support him financially. He also pointed to the delayed reporting of the incident, the absence of testimony from a watchman or neighbors, the failure to recover the alleged knife, and the lack of CCTV footage or evidence of forced entry.
6. During cross-examination, the Appellant admitted that Isaac Sendo was his father and that he used the mobile number registered in his father's name, to which the impugned M-Pesa transfers were sent. However, he insisted that the complainant had voluntarily sent him the money while they were together and reiterated that the recovered mobile phone had been given to him by the complainant. He did not call any independent witness or produce any evidence to corroborate the alleged romantic relationship. DW2, Isaac Sendo, the Appellant's father, testified that the Appellant was his son and stated that, to his knowledge, the dispute arose from a failed romantic relationship between the Appellant and the complainant.
7. At the conclusion of the trial, the learned trial magistrate, in a judgment delivered on 4th June 2025, found the Appellant guilty of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code, convicted him accordingly, and marked the alternative charge as spent. Upon considering the Appellant's mitigation, the trial court, on 6th August 2025, sentenced him to life imprisonment.
8. Being dissatisfied with the conviction and sentence, the Appellant lodged the present appeal. The appeal is founded on the Petition of Appeal and the Amended Supplementary Grounds of Appeal. In the Petition of Appeal, the Appellant contends that the trial court erred in failing to find that the complainant was his girlfriend who had voluntarily given him the mobile phone, relied on a defective charge sheet, and convicted him despite the prosecution having failed to prove its case beyond reasonable doubt. In the Amended Supplementary Grounds of Appeal, the Appellant further contends that the prosecution evidence was riddled with inconsistencies and contradictions, that the offence of robbery with violence was not proved to the required standard, that he had discharged his burden under section 111 of the Evidence Act regarding the recovered mobile phone, and that the trial court erred in rejecting his defence without giving cogent reasons. He prayed that the appeal be allowed, the conviction be quashed, the sentence be set aside, and that he be set at liberty unless otherwise lawfully held.
Appellant’s Submissions
9. The Appellant submits that the prosecution failed to prove the charge of robbery with violence beyond reasonable doubt, contending that the evidence on record was riddled with material contradictions, inconsistencies and improbabilities which rendered the prosecution case unreliable. He argues that the testimonies of PW1 and PW2 were contradictory as to the time of the alleged robbery, the sequence of events, the existence of a caretaker, and the circumstances under which the offence allegedly occurred. He further submits that the complainant failed to produce medical evidence to support the alleged assault, did not promptly report the incident to either her neighbors or the police, and that the alleged weapon was never recovered or produced in evidence. The Appellant also questions the authenticity of the M-Pesa transactions, the ownership of the allegedly stolen mobile phone, and the credibility of the complainant's account, while maintaining that the trial court failed to properly consider his defence that he was in a prior romantic relationship with the complainant. In support of these submissions, the Appellant relies on Dankerai Ramkrishna Pandya v R [1957] EA, Alex Nadosoito v Republic [2020] KEHC 2736 (KLR), and Joseph Ndungu Kimanyi v Republic [1979] KLR , to argue that contradictory and unreliable evidence cannot sustain a criminal conviction.
10. The Appellant further submits that the trial court erred in law and fact by convicting him on the basis of unsafe identification evidence and by failing to find that the prosecution had not discharged its burden of proof beyond reasonable doubt. He contends that no identification parade was conducted despite his arrest occurring nearly three weeks after the alleged offence, and that the complainant's dock identification, unsupported by any prior description of the assailant, was insufficient to found a conviction. He places reliance on Francis Kariuki Njiru & 7 Others v Republic, Criminal Appeal No. 6 of 2001, Barasa v Republic [2024] KEHC 8908 (KLR), Peter Mwangi Mungai v Republic [2002] eKLR, Owen Kimotho Kiarie v Republic, Criminal Appeal No. 93 of 1983, Charles O. Maitanyi v Republic [1986] KLR, and R v Turnbull [1976] 3 All ER 549 for the proposition that identification evidence, particularly in night-time circumstances, must be subjected to the greatest scrutiny. The Appellant further relies on Philip Muiruri Ndaruga v Republic [2016] KEHC 4252 (KLR) to submit that the numerous inconsistencies in the prosecution case created reasonable doubt which ought to have been resolved in his favour.
11. Finally, the Appellant submits that the learned trial magistrate erred in both law and fact by convicting and sentencing him despite the prosecution's failure to establish all the essential ingredients of the offence under Sections 295 and 296(2) of the Penal Code. He argues that the conviction was founded on malice, hearsay and uncorroborated evidence, while his defence was dismissed without proper evaluation, thereby violating his right to a fair trial under Article 50 of the Constitution. The Appellant further contends that the sentence of life imprisonment was harsh and excessive in the circumstances, particularly where the prosecution had failed to prove its case beyond reasonable doubt. He therefore urges this Court to allow the appeal, quash the conviction, set aside the sentence, and order his immediate release.
Issue for Determination
12. Having carefully considered the Record of appeal, and the written submissions filed, this Court is of the considered view that the following issues arise for determination:
i. Whether the prosecution proved the charge of robbery with violence against the Appellant beyond reasonable doubt.
ii. Whether the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant.
Analysis and Determination
13. Having set out the background to this appeal, this Court, being the first appellate court, is under a duty to reconsider, re-evaluate and analyze the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was aptly stated by the Court of Appeal in David Njuguna Wairimu v Republic [2010] eKLR as follows:
"The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash 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."
14. On the first issue, on whether the prosecution proved the charge of robbery with violence against the Appellant beyond reasonable doubt, the Appellant was convicted of the offence of robbery with violence contrary to Sections 295 and 296(2) of the Penal Code. The starting point is the applicable legal framework. The offence of robbery with violence is provided for under Sections 295 and 296(2) of the Penal Code. It is therefore necessary to consider the provisions of Section 295 of the Penal Code, which defines robbery as follows:
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.
15. In Moneni Ngumbao Mangi v. Republic, CR APP No 141 of 2005 (Mombasa), the Court stated:
"The word 'robbed' is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use or threat of actual violence to any person or property in order to obtain or retain stolen property."
16. To prove the offence of robbery with violence, the prosecution must establish the offence of robbery under Section 295 of the Penal Code together with at least one of the aggravating circumstances set out under Section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more other persons; or at or immediately before or immediately after the robbery wounded, beat, struck or used other personal violence upon the victim.
17. The court of Appeal in Oluoch v Republic [1985] KLR held that the offence is established where the prosecution proves any one of the following ingredients:
i. The offender was armed with any dangerous or offensive weapon or instrument;
ii. The offender was in the company of one or more other persons; or
iii. At or immediately before or immediately after the robbery, the offender wounded, beat, struck or used other personal violence upon the victim.
18. In the instant case, PW1 testified that on the night of 30 th /31 st October 2023, after returning home from work, she locked her house and retired to bed. At about 2.30 a.m., she was awakened by commotion and felt someone lifting her leg. The Appellant threatened to kill her unless she cooperated and demanded money, her ATM card and her M-Pesa PIN. PW1 testified that she initially gave an incorrect PIN, whereupon the assailant slapped her before she disclosed the correct one. She further stated that, as he continued threatening her with a knife, he also sent money through her Fuliza, which he transferred to mobile number 0704911795 registered in the name of Isaac Sendo. According to PW1, the assailant thereafter stole her Techno Camon 20 mobile phone valued at Kshs. 24,900, cash amounting to Kshs. 10,000, a black handbag containing personal documents and Kshs. 3,200, and a Tecno Pop 7 mobile phone belonging to her house help, PW2.
19. In Dima Denge Dima & Others Vs. Republic, Criminal Appeal No. 300 of 2007 the Court stressed this point when it 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.”
20. Having considered the ingredients of the offence of robbery with violence and the evidence on record, this Court is satisfied that the prosecution established the occurrence of the offence.
21. The Appellant further challenged the identification evidence relied upon by the prosecution. In hi submissions he stated that the complainant’s testimony was riddled with inconsistencies, including her assertion that the police did not visit the scene after the report was made, which was contrary to PW5’s evidence that she visited the scene on 6th November 2023. The Appellant argued that the complainant was the only witness who identified him as the assailant and that the alleged identification was made at night and under stressful circumstances. He contended that no prior description of the assailant was given to the police at the time of reporting, save for the mention of beards, and that no identification parade was conducted despite his arrest nearly three weeks after the alleged incident. He maintained that his identification while in police custody was unsafe and amounted to dock identification.
22. It is trite that evidence of identification, particularly where it is made in difficult circumstances such as at night, must be approached with great caution. In R v Turnbull & Others [1976] 3 All ER 549, the court emphasized that the circumstances surrounding the identification must be carefully examined, including the length of time the witness had the accused under observation, the distance between them, the lighting conditions, whether the observation was obstructed, whether the witness had previously seen the accused, and the time lapse between the initial observation and the subsequent identification.
23. Similarly, in Francis Kariuki Njiru & 7 Others v Republic, Criminal Appeal No. 6 of 2001, the Court of Appeal held that identification evidence, particularly where the incident occurred at night, must be subjected to careful examination before a conviction can safely be entered.
24. In the present case, PW1 testified that she was able to identify the Appellant during the robbery through the light from the assailant’s torch and her mobile phone. She stated that the assailant was close to her and that she was able to see his face. However, the incident occurred at approximately 2.30 a.m., when PW1 had been awakened from sleep and was under threats from a person allegedly armed with a knife. These circumstances required the Court to carefully scrutinize the reliability of the identification evidence.
25. The evidence on record further shows that PW1 and the Appellant were not strangers. The Appellant’s defence was that he had been in a romantic relationship with PW1 and had previously visited and spent nights at her house. Although PW1 disputed the nature of that relationship, the alleged prior interaction between them was relevant in considering whether the evidence amounted to recognition rather than identification of a stranger.
26. It is also significant that the Appellant was arrested nearly three weeks after the alleged robbery and PW5 confirmed that no identification parade was conducted. Instead, PW1 identified the Appellant while he was in police custody. In Samuel Kilonzo Musau v Republic [2014] eKLR, the Court of Appeal stated that an identification parade is not a scientific test but is the best practical method of achieving identification without confrontation. The purpose of an identification parade, as explained in Kinyanjui & 2 Others v Republic [1989] KLR 60 , is to provide a witness with an opportunity, under controlled and fair conditions, to identify a person whom they claim to have seen and to ensure that a proper record is made to avoid subsequent confusion..
27. In the instant case, PW3, PW4 and PW5 testified that upon the arrest of the Appellant, he was found in possession of a Tecno Camon 20 mobile phone. PW1 positively identified the phone as hers through the IMEI number, the purchase receipt and the box which she produced before court. The investigating officer confirmed that the IMEI number on the recovered phone corresponded with that of the phone reported stolen by PW1. The Appellant did not dispute being found in possession of the phone but claimed that it had been given to him by PW1 during their alleged relationship.
28. The recovery of the complainant’s mobile phone raises the issue of the doctrine of recent possession. In Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic, Criminal Appeal No. 272 of 2005 (UR), the Court of Appeal held that for the doctrine of recent possession to amount to positive proof, the prosecution must establish that the property was found in the possession of the accused; that the property was positively identified as belonging to the complainant; that the property was stolen from the complainant; and that it was recently stolen from the complainant.
29. Applying the above principles, this Court finds that the Tecno Camon 20 mobile phone was recovered from the Appellant, positively identified as belonging to PW1 through the IMEI number and receipt, and was part of the property reported stolen during the robbery.
30. Although no identification parade was conducted, the Court is satisfied that the identification evidence was corroborated by the doctrine of recent possession and the M-Pesa transaction trail. The inconsistencies identified by the Appellant relate to peripheral matters and do not go to the substance of the prosecution case. The Appellant’s explanation that the phone had been gifted to him was unsupported by any independent evidence and does not displace the inference arising from his possession of recently stolen property.
31. Further, the evidence showed that money was transferred from PW1’s M-Pesa account to a mobile number registered in the name of the Appellant’s father, which the Appellant admitted using. This evidence, considered alongside the recovery of the phone, provided additional linkage between the Appellant and the offence.
32. The Court has also considered the issue of the delayed report raised by the Appellant. In Tekerali s/o Korongozi & 4 Others v Republic (1952) 19 EACA 259 , the Court emphasized the importance of the first report as a safeguard against subsequent embellishment, coaching or fabrication. In the present case, although PW1 reported the incident on 6th November 2023, several days after the robbery, there is no evidence that the delay prejudiced the investigations or resulted in the fabrication of evidence. On the contrary, the report formed the basis of the investigations that led to the recovery of the complainant's mobile phone and the tracing of the M-Pesa transactions linking the Appellant to the offence. In the circumstances, the delay in reporting does not, of itself, render the prosecution's case unreliable.
33. Having considered the evidence in its totality, this Court finds that although the circumstances surrounding the identification of the Appellant required caution, the prosecution's case was not founded solely on the identification evidence. The identification was corroborated by the recovery of the complainant's Tecno Camon 20 mobile phone from the Appellant's possession, which was positively identified through its IMEI number and receipt, as well as the M-Pesa transaction trail linking the stolen funds to a mobile number admittedly used by the Appellant. Considered cumulatively, this evidence forms a consistent chain linking the Appellant to the offence and excludes the possibility of mistaken identity.
34. The Court has also considered the Appellant's defence that he was in a romantic relationship with PW1 and that the complainant had voluntarily given him the mobile phone and transferred the money to him. However, even if such a relationship existed, that fact alone does not explain the Appellant's possession of the complainant's mobile phone shortly after the robbery or the transfer of funds from her account in the circumstances described by the prosecution. The Appellant did not adduce any independent evidence to support his assertions. Accordingly, this Court finds that the defence was not plausible and did not cast any reasonable doubt on the prosecution's case.
35. Accordingly, having re-evaluated the evidence on record, this Court finds that the prosecution proved beyond reasonable doubt that the Appellant was responsible for the robbery and that the offence of robbery with violence contrary to Sections 295 and 296(2) of the Penal Code was established. The conviction by the trial court is therefore upheld.
36. Turning on to the second issue, as to whether the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant.
37. From the record, it is apparent that before sentencing the Appellant, the learned trial magistrate considered his mitigation, including his age, the fact that he was a young person, that the complainant had recovered her mobile phone, and that he had been in custody during the pendency of the trial. The trial court, however, considered the seriousness of the offence, noting that robbery with violence is a grave offence and that the phone was not voluntarily returned but was recovered from the Appellant upon his arrest.
38. Notably, the Appellant was found guilty of the offence of robbery with violence. The sentence applicable to the offence is provided for under Section 296(1) and (2) of the Penal Code, which provides as follows:
(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company of 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.
39. Furthermore, although Section 296(2) of the Penal Code prescribes a mandatory death sentence, courts have since departed from the mandatory nature of that sentence on the basis that it limits the Court’s discretion to consider mitigation and individual circumstances of an offender. The mandatory application of the sentence has been held to be inconsistent with an accused person’s right to a fair trial and access to justice under Articles 50 and 48 of the Constitution of Kenya, 2010, respectively, as mitigation forms an integral part of the sentencing process under Section 329 of the Criminal Procedure Code.
40. In James Kariuki Wagana v Republic [2018] eKLR , the High Court, while considering the decisions in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and William Okungu Kittiny v Republic [2018] eKLR , held that although the maximum sentence for the offence of robbery with violence remains the death penalty, the Court retains discretion to impose an appropriate sentence depending on the circumstances of each case.
41. The Appellant submitted that the prosecution failed to prove the offence of robbery with violence beyond reasonable doubt as required under Section 296(2) of the Penal Code. He argued that the essential ingredients of the offence were not established and that the State failed to discharge its burden of proof. The Appellant further maintained that the prosecution case was riddled with contradictions, hearsay, malice and allegations arising from a personal dispute between him and the complainant. He contended that the recovery of PW1’s phone and his admission that he had been at the complainant’s house did not, without more, establish his guilt. He further argued that the trial court failed to properly consider his defence before convicting him and that the sentence of life imprisonment imposed upon him was harsh and excessive in the circumstances of the case.
42. In R v Scott (2005) NSWCCA 152 , Howie J, Grove J and Barr J stated:
“There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. One of the purposes of punishment is to ensure that an offender is adequately punished, while a further purpose is to denounce the conduct of the offender.”
43. The Supreme Court in Francis Karioko Muruatetu & Another Vs. Republic, Petition No. 15 of 2015 , set out the mitigating factors to be considered in sentencing, which include the age of the offender, whether the offender is a first offender, whether the offender pleaded guilty, the offender's character and record, remorsefulness, the possibility of reform and social re-adaptation, and any other factor the court considers relevant. The Court emphasized that sentencing should be individualized, with due regard to the circumstances of both the offence and the offender.
44. Having considered the mitigating and aggravating circumstances of this case, this Court is of the view that although the offence of robbery with violence is serious and warrants a substantial custodial sentence, the sentence of life imprisonment imposed by the trial court was excessive in the circumstances. The Appellant was a young first offender, and the trial court also noted that he had been in custody during the pendency of the trial. Taking into account the period already spent in custody pursuant to Section 333(2) of the Criminal Procedure Code, this Court finds that a sentence of twenty (20) years' imprisonment is appropriate and proportionate.
45. Accordingly, the appeal against conviction is dismissed. However, the appeal against sentence succeeds to the extent that the sentence of life imprisonment is set aside and substituted with a sentence of twenty (20) years' imprisonment, to run from the date the Appellant was first remanded in custody, in compliance with Section 333(2) of the Criminal Procedure Code.
Disposition
46. In light of the foregoing analysis and findings, this Court makes the following orders:
i. This Court finds that the prosecu
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