[Being an Appeal against the Conviction and Sentence of the Hon. M.O. Obiero SPM delivered on 22 nd day of September, 2025 in the Senior Principal Magistrates Court at Kehancha in Criminal Case No. E990 of 2023]
JUDGMENT
INTRODUCTION
1. The Appellants Samson Boke Masire, Christopher Onyancha and Evans Giyabe were charged with the offence of Robbery with Violence Contrary to Section 296(2) of the penal code . The particulars of the offence as stated on the Charge Sheet were that on the 20 th day of December, 2023 , at Migori County, jointly while armed with dangerous weapon namely knife you robbed LUCAS BOKE MOGORE of his Mobile Phone make Samsung A10s valued at Kshs. 15,000/=, money Kshs. 10,800/= and Motor cycle make Honda 125cc red in colour registration number KMGJ 450V chassis/frame number BF0JA6791N5007306 valued at Kshs. 265,423/=.
2. The Appellants pleaded not guilty to the offence and the Prosecution proceeded to call a total of 5 witnesses.
3. At the close of the prosecution’s case, the Court found the Appellants to have a case to answer and were placed on their Defence. They all elected to give sworn evidence to which they were cross examined on. None of the accused persons called any witnesses. The Court proceeded to give its judgement on the 22/9/2025 and all the Appellants were convicted and sentenced to death.
4. Dissatisfied with the decision, the Appellants separately filed Petition of Appeals in which the grounds relied upon were similar and is reproduced verbatim as follows;
a) That I plead not guilty to the offence herein.
b) That the circumstances under which the offence was committed was not favourable to warrant a conviction.
c) That I was not found in physical possession of the exhibits.
d) That the trial court down looked my defence without giving cogent reasons.
e) That the prosecution failed to prove their case beyond reasonable doubt .
5. That additionally, the 2 nd Appellant went ahead and filed Supplementary Grounds of Appeal dated the 23 rd January, of 2026 in which the supplementary grounds relied upon are as follows;
a) That the trial court erred in law and in facts in not making a finding that stealing was not proved beyond a reasonable doubt standard on the appellant for nobody saw who stole the motorcycle.
b) That the trial court erred in law and in fact in invoking the doctrine of recent possession to convict the appellant without corroboration.
c) That the trial court erred in law and in fact in relying on the evidence of the accomplice witness PW2 which was uncorroborated to convict the appellant.
d) That the trial court erred in law and in fact in not complying with section 214 of the Criminal Procedure Code Cap 75 Laws of Kenya.
e) That the trial court erred in law and in fact in not making a finding that the appellants were delayed in cell beyond the required 24 hours.
f) That the trial court erred in law and in fact in not making a finding that the mandatory nature of death sentence under Section 296 (2) of the Penal Code is unconstitutional. Thus sentencing the Appellant to a manifestly excessive sentence which is unproportional to the circumstance of the case.
6. The Court notes that the three Criminal Appeals were filed separately but arise from the same trial and involve common questions of fact and law. In the circumstances, and for purposes of efficient case management and to avoid the possibility of conflicting decisions, the Court directed on the 16/3/2026 that the three appeals proceed together and be heard as one, with the lead file being this one.
7. The Appeal was canvased by way of written submissions filed by both parties herein.
8. Having set out the background to the matter, this Court’s duty is to evaluate and scrutinize the evidence and proceedings on record and reach its own independent conclusion as espoused in David Njuguna Wairimu V Republic [2010 ] where the court of appeal held: -
“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 appellant 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 decisions.
(See also the case of Okeno vs. Republic [1972] E.A 32 )
9. This Court has carefully considered the proceedings before the Trial Court, the Petitions of Appeal, the supplementary grounds of Appeal as well as the submissions made by both the Appellant and the Respondent. From the foregoing I have identified the following to be the main issues for determination;
i. Whether the ingredients of robbery with violence were established;
ii. Whether there was sufficient evidence linking the Appellants to the offence?
iii. Whether the doctrine of recent possession was applicable
iv. Whether the Appellant’s defense was properly considered?
v. Whether the Appellants’ right to fair hearing was infringed?
vi. Whether Section 214 of the Criminal Procedure Code was complied with
vii. Whether the sentence imposed was lawful and constitutional?
ANALYSIS AND DETERMINATION
10. On the first issue, the Appellants were convicted of the charge of robbery with violence. The offence is a creation of Sections 295 and 296(2) of the Penal Code. It is axiomatic that in considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms:
“ 295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. ”
11. In Moneni Ngumbao Mangi vs Republic, CR APP No 141 of 2005 (Mombasa) the Court stated that:
“ The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property ”.
12. To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. In Johana Ndungu V. Republic , CR. APP. NO. 116 OF 1995 the Court extrapolated the position as follows:
“ In order to appreciate properly as to what acts, constitute an offence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the Penal Code. 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. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2) …” (Emphasis added).
13. The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the offence as follows:
i. The offender is armed with any dangerous and offensive weapon or instrument;
ii. The offender is in company with one or more persons;
iii. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim.
14. In the instant case, PW1 testified that he works as a boda boda and on the 10/12/2023 he was approached by the 3 rd Appellant and another person who requested him to take them to Ngerere on his Motor Cycle. On reaching there they told him that the road to the shamba where they were going was a bad road and the payment was to be made by their mother so he parked the Motor Cycle in a certain home. He testified that that he proceeded to the shamba and upon reaching the maize plantation one of them caught his mouth and he became unconscious, that when he finally woke up he realized that they had put soil in his eyes and he was bleeding from the nose. The medical report (P3 form) corroborated his injuries. On cross examination the 2 nd Appellant had no question for the Complainant however while being cross examined by the 3 rd Appellant and looking at the record, the answers point to the allegation that PW1 gave or maybe hired the said Motor Cycle to the 3 rd Appellant however PW1’s response was to the effect that he never gave him the motorcycle, he did not know the 3 rd Appellant prior to the incident in court and also he did not hire the said Motor cycle to the 3 rd Appellant.
15. This Court notes that that evidence produced in itself would be sufficient to prove robbery with violence since the Prosecution need only prove one of the ingredients. However, here, the Prosecution also proved the use of personal violence on the Complainant. Again, the Complainant testified that he suffered injury and the 3 rd Appellant was one of the people who attacked him. This was corroborated by the P3 Form that was produced by the prosecution
16. Further PW2 in tendering his evidence before the trial court stated that he was approached by the 1 st and 2 nd Appellant with a red numberless motor cycle and asked him to be riding the said Motor cycle at an estimated cost of 400/= per day. He testified that on the same day while going to Sirare to take two customers he was stopped and asked how he came into possession of the Motor cycle and he explained that the same was given to him by the 1 st & 2 nd Appellant who he knew very well
17. In the case of 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.”
18. Consequently, on the ingredients of the offence, this court is satisfied that the 3 rd Appellant was in the company of another person when they attacked and robbed PW1. All the elements of the offence are present. There was more than one person and they used physical violence on PW1 and robbed him of his Motor cycle. It is therefore not true that the ingredients of the offence were not proved beyond reasonable doubt. On my own analysis and consideration, the offence of robbery with violence has been proven beyond reasonable doubt and the conviction by the Trial Court is upheld.
19. On the second issue as to whether there was sufficient evidence linking the Appellants to the offence, identification is crucial in cases of robbery with violence. In Patrick Opondo Opollo & Another v Republic Criminal Appeal No. 23 of 2014 , the Court emphasized the need for courts to scrutinize the conditions of identification to ensure its reliability.
20. Further in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
21. The Court notes that from the evidence, the incident occurred during the day at around 8:30 am in the morning where he met the 3 rd Appellant and another person which clearly denotes that he could recognize his face considering they spent a considerable amount of time while he was riding him and another person to Ngerere, and even alighted and walked to the maize plantation together with the 2 individuals.
22. Further, PW2 testified that the Motor cycle was given to him by the 1 st & 2 nd Appellant who brought it to his home, this is clear that they were well known to each other even prior to the incident herein. To this end I agree with the trial court that the evidence of both PW1 & PW2 was sufficient to demonstrate the Appellants were linked to the said offence. 1 st and 2 nd Appellant were unable to rebut on how the Motor cycle ended up in their custody whereas the 3 rd Appellant did not have any questions in cross examination in respect to PW2 but to PW1 he hinted to a possibility that it is PW1 who gave or hired to him the Motor Cycle.
23. Considering the above and relying in the case of Anjononi & Others v Republic [1980] KLR 59 , I am satisfied that the prosecution presented sufficient evidence linking the Appellants to the crime, and the trial court did not err in its findings.
24. On the third issue, this court is satisfied that the doctrine of recent possession was applicable in this case. This Court cites the case of Athuman Salim Athuman vs Republic [2016] eKLR where the High Court discussed the doctrine to entail where an accused person is found in recent possession of stolen property and cannot offer reasonable explanation how he came into possession of such property that gives rises to a presumption that he is either the thief or receiver.
25. Similarly the High Court in the case of Isaac Nganag Kahiga Alias Peter Nganga Kahiga vs Republic CR APP No 272 of 2005 enumerated the circumstances in which the doctrine of recent possession form the basis of a conviction being that; the property was found with the accused, the property was positively identified to belong to the complainant, and that the property was recently stolen from the complainant, with proof of time being dependent on how easy the stolen property can move from one person to another.
26. This Court is satisfied that the Motor cycle belonged to the Complainant as per the evidence tendered, I am also satisfied that the 1 st & 2 nd Appellant have failed to demonstrate how they ended up in possession of the said Motor cycle or given any evidence to rebut to it being in their possession before giving the same to PW2b two days after the incident.
27. On the fourth issue, the court notes that the defenses raised did not effectively challenge the evidence against them brought forth by the Prosecution. I am satisfied that the defenses were mere denial and did not raise substantial issues to be determined by the trial court.
28. On the fifth issue, on whether the right to be arraigned before court within 24 hours was infringed upon. It is noteworthy, however, that the issue was not raised at the earliest opportunity before the trial Court but was introduced after conviction.
29. In Julius Kamau Mbugua v Republic [2010] KECA 109 (KLR) , the Court of Appeal considered a similar complaint raised late in the proceedings and observed that such a complaint, when raised at the culmination of the trial, may amount to an afterthought intended to undermine the criminal proceedings.
30. The Court further settled the position that violation of the right to be brought before a Court within the prescribed period does not, without more, invalidate the trial or entitle an accused person to an acquittal. The appropriate remedy for the violation of the constitutional right is distinct from the determination of criminal culpability.
31. It is therefore of my considered view that the same is an afterthought and does not warrant an acquittal
32. On the Sixth issue, this court associates itself with the case of Michael Kamoru Guantai v Republic [2013] eKLR , where the court held:
“From the record, there is nothing to show that the Appellant was informed of the right to cross-examine PW1 or was called upon by the trial court to cross-examine PW1. It was incumbent upon the trial court to have informed the Appellant of the right of cross-examination, especially where he was not represented by a legal counsel, and if the Appellant did not have any question to put to the witness, it should have recorded that fact. That is the law and should be the standard procedure in a criminal trial. Thus, that failure by the trial court was a fatal omission which entitles the Appellant to assert that he was not afforded the opportunity to cross-examine those witnesses. It is a kind of judicial error on which a court of law may ordinarily quash the conviction and set aside the sentence which I hereby do.”
33. I associated myself with the above analyzed case and I further find that appellant’s right to challenge evidence that is enshrined in Article 50(2) (k) was breached.
34. This Court holds that that failure to inform an accused of rights conferred by law is not a mere procedural irregularity curable under Section 382 of the Criminal Procedure Code.
35. In the present case, the record does not demonstrate that the 1 st Appellant was informed of the right to have the complainant recalled. More importantly, the complainant's evidence remained untested by the 1 st Appellant through cross-examination. In the circumstances, the failure to recall the complainant after the 1 st Appellant was joined to the proceedings occasioned substantial prejudice and rendered the subsequent proceedings unsafe.
36. I have considered whether this would be an appropriate case for re-trial. I have considered the principles for re-trial enunciated in Benard Lolimo Ekimat V R Criminal Appeal No. 151 of 2004 in which the Court of Appeal held:
“There are many decisions on the question of what appropriate case would attract an order of retrial but on the main, the principle that has been acceptable to court is that each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice require it .
37. The phrase " in the interests of justice " potentially has a broad scope. It includes the right to fair trial, which is a fundamental right of the accused. In the context of the right to a fair trial, the time the case has lasted, the period the appellant was in prison, the weight of the evidence and the possibility of a conviction needs to be considered. In this regard, I find it necessary to emphasize that fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner.
38. I have considered the period the 1 st Appellant has been in prison which is from 16/2/2024 to date. He went through the entire process and he tendered his defence. Having already tendered his defence in the lower court, I find that a retrial will not be without prejudice because the prosecution is already aware of his defence.
39. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. There has to be a fair trial and no miscarriage of justice should be permitted and under no circumstances should prejudice be caused to the accused.
40. On the totality of the evidence on record, I find that the interest of justice in this case does not justify a re-trial of the 1 st Appellant.
41. On the last issue regarding the sentence, the principles guiding interference with sentencing by the appellate Court were properly set out in S vs Malgas 2001 (1) SACR 469 (SCA ) at para 12 where it was held that: -
“ A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”
42. Similarly, in Mokela vs The State (135/11) [2011] ZASCA 166 , the Supreme Court of South Africa held that: -
“ It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served .”
43. The 2 nd & 3 rd Appellant submits that the mandatory nature of the death sentence under section 296(2) of the Penal Code is unconstitutional. The decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR , the Supreme Court held that the mandatory death sentence for murder was unconstitutional. While Muruatetu’s case (Supra) dealt with murder under section 204 of the Penal Code, and has consistently held that the declaration under the Muruatetu case does not extend to other offences, and the courts are enjoined to apply the sentences provided by the various statutes and laws.
44. In the Supreme Court decision in Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment) , the court clarified on the issue of mandatory sentences under section 296 (2) of the Penal Code. It did state that:
“ But even as we down our tools, we consider it paramount to restate the following for the sake of posterity and the development of jurisprudence, in terms of this court’s past decisions on similar cases. In this appeal, we have observed that the High Court substituted the death sentence with a custodial sentence of 30 years’ imprisonment ostensibly on the authority of our decision in the Muruatetu case. This sentence was later affirmed by the Court of Appeal on second appeal, despite the court acknowledging our decision in the Muruatetu case that the mandatory nature of the death sentence only applied to murder convictions and did not extend to robbery with violence ”.
45. Given that the trial court imposed a mandatory death sentence, as provided for in law, this court cannot intervene, reconsider or impose a different sentence.
46. From the foregoing, having found that the Trial Court did not err in law by imposing a mandatory death sentence to the 2 nd & 3 rd Appellant and the rational exercise of discretion pursuant to the principles in Muruatetu case , we uphold the death sentence imposed by the trial court upon the 2 nd and 3 rd Appellants.
Final Orders.
47. In the result, the appeal by the 1 st Appellant against conviction is allowed. The conviction is quashed and the sentence imposed upon him is set aside. Having found that the interests of justice do not justify a retrial, no order for retrial shall issue. The 1 st Appellant is thus acquitted and set free unless otherwise lawfully held.
48. The appeals by the 2 nd and 3 rd Appellants’ against conviction are dismissed. Their appeals against sentence are, equally dismissed. The death sentences imposed upon them are confirmed.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 23 rd Day of July 2026.
HCCRA NO. E107 OF 2025 CHRISTOPHER ONYANCHA & OTHERS VS REPUBLIC Pg. 13
JUDGMENT
INTRODUCTION
1. The Appellants Samson Boke Masire, Christopher Onyancha and Evans Giyabe were charged with the offence of Robbery with Violence Contrary to Section 296(2) of the penal code . The particulars of the offence as stated on the Charge Sheet were that on the 20 th day of December, 2023 , at Migori County, jointly while armed with dangerous weapon namely knife you robbed LUCAS BOKE MOGORE of his Mobile Phone make Samsung A10s valued at Kshs. 15,000/=, money Kshs. 10,800/= and Motor cycle make Honda 125cc red in colour registration number KMGJ 450V chassis/frame number BF0JA6791N5007306 valued at Kshs. 265,423/=.
2. The Appellants pleaded not guilty to the offence and the Prosecution proceeded to call a total of 5 witnesses.
3. At the close of the prosecution’s case, the Court found the Appellants to have a case to answer and were placed on their Defence. They all elected to give sworn evidence to which they were cross examined on. None of the accused persons called any witnesses. The Court proceeded to give its judgement on the 22/9/2025 and all the Appellants were convicted and sentenced to death.
4. Dissatisfied with the decision, the Appellants separately filed Petition of Appeals in which the grounds relied upon were similar and is reproduced verbatim as follows;
a) That I plead not guilty to the offence herein.
b) That the circumstances under which the offence was committed was not favourable to warrant a conviction.
c) That I was not found in physical possession of the exhibits.
d) That the trial court down looked my defence without giving cogent reasons.
e) That the prosecution failed to prove their case beyond reasonable doubt .
5. That additionally, the 2 nd Appellant went ahead and filed Supplementary Grounds of Appeal dated the 23 rd January, of 2026 in which the supplementary grounds relied upon are as follows;
a) That the trial court erred in law and in facts in not making a finding that stealing was not proved beyond a reasonable doubt standard on the appellant for nobody saw who stole the motorcycle.
b) That the trial court erred in law and in fact in invoking the doctrine of recent possession to convict the appellant without corroboration.
c) That the trial court erred in law and in fact in relying on the evidence of the accomplice witness PW2 which was uncorroborated to convict the appellant.
d) That the trial court erred in law and in fact in not complying with section 214 of the Criminal Procedure Code Cap 75 Laws of Kenya.
e) That the trial court erred in law and in fact in not making a finding that the appellants were delayed in cell beyond the required 24 hours.
f) That the trial court erred in law and in fact in not making a finding that the mandatory nature of death sentence under Section 296 (2) of the Penal Code is unconstitutional. Thus sentencing the Appellant to a manifestly excessive sentence which is unproportional to the circumstance of the case.
6. The Court notes that the three Criminal Appeals were filed separately but arise from the same trial and involve common questions of fact and law. In the circumstances, and for purposes of efficient case management and to avoid the possibility of conflicting decisions, the Court directed on the 16/3/2026 that the three appeals proceed together and be heard as one, with the lead file being this one.
7. The Appeal was canvased by way of written submissions filed by both parties herein.
8. Having set out the background to the matter, this Court’s duty is to evaluate and scrutinize the evidence and proceedings on record and reach its own independent conclusion as espoused in David Njuguna Wairimu V Republic [2010 ] where the court of appeal held: -
“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 appellant 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 decisions.
(See also the case of Okeno vs. Republic [1972] E.A 32 )
9. This Court has carefully considered the proceedings before the Trial Court, the Petitions of Appeal, the supplementary grounds of Appeal as well as the submissions made by both the Appellant and the Respondent. From the foregoing I have identified the following to be the main issues for determination;
i. Whether the ingredients of robbery with violence were established;
ii. Whether there was sufficient evidence linking the Appellants to the offence?
iii. Whether the doctrine of recent possession was applicable
iv. Whether the Appellant’s defense was properly considered?
v. Whether the Appellants’ right to fair hearing was infringed?
vi. Whether Section 214 of the Criminal Procedure Code was complied with
vii. Whether the sentence imposed was lawful and constitutional?
ANALYSIS AND DETERMINATION
10. On the first issue, the Appellants were convicted of the charge of robbery with violence. The offence is a creation of Sections 295 and 296(2) of the Penal Code. It is axiomatic that in considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms:
“ 295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. ”
11. In Moneni Ngumbao Mangi vs Republic, CR APP No 141 of 2005 (Mombasa) the Court stated that:
“ The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property ”.
12. To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. In Johana Ndungu V. Republic , CR. APP. NO. 116 OF 1995 the Court extrapolated the position as follows:
“ In order to appreciate properly as to what acts, constitute an offence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the Penal Code. 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. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2) …” (Emphasis added).
13. The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the offence as follows:
i. The offender is armed with any dangerous and offensive weapon or instrument;
ii. The offender is in company with one or more persons;
iii. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim.
14. In the instant case, PW1 testified that he works as a boda boda and on the 10/12/2023 he was approached by the 3 rd Appellant and another person who requested him to take them to Ngerere on his Motor Cycle. On reaching there they told him that the road to the shamba where they were going was a bad road and the payment was to be made by their mother so he parked the Motor Cycle in a certain home. He testified that that he proceeded to the shamba and upon reaching the maize plantation one of them caught his mouth and he became unconscious, that when he finally woke up he realized that they had put soil in his eyes and he was bleeding from the nose. The medical report (P3 form) corroborated his injuries. On cross examination the 2 nd Appellant had no question for the Complainant however while being cross examined by the 3 rd Appellant and looking at the record, the answers point to the allegation that PW1 gave or maybe hired the said Motor Cycle to the 3 rd Appellant however PW1’s response was to the effect that he never gave him the motorcycle, he did not know the 3 rd Appellant prior to the incident in court and also he did not hire the said Motor cycle to the 3 rd Appellant.
15. This Court notes that that evidence produced in itself would be sufficient to prove robbery with violence since the Prosecution need only prove one of the ingredients. However, here, the Prosecution also proved the use of personal violence on the Complainant. Again, the Complainant testified that he suffered injury and the 3 rd Appellant was one of the people who attacked him. This was corroborated by the P3 Form that was produced by the prosecution
16. Further PW2 in tendering his evidence before the trial court stated that he was approached by the 1 st and 2 nd Appellant with a red numberless motor cycle and asked him to be riding the said Motor cycle at an estimated cost of 400/= per day. He testified that on the same day while going to Sirare to take two customers he was stopped and asked how he came into possession of the Motor cycle and he explained that the same was given to him by the 1 st & 2 nd Appellant who he knew very well
17. In the case of 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.”
18. Consequently, on the ingredients of the offence, this court is satisfied that the 3 rd Appellant was in the company of another person when they attacked and robbed PW1. All the elements of the offence are present. There was more than one person and they used physical violence on PW1 and robbed him of his Motor cycle. It is therefore not true that the ingredients of the offence were not proved beyond reasonable doubt. On my own analysis and consideration, the offence of robbery with violence has been proven beyond reasonable doubt and the conviction by the Trial Court is upheld.
19. On the second issue as to whether there was sufficient evidence linking the Appellants to the offence, identification is crucial in cases of robbery with violence. In Patrick Opondo Opollo & Another v Republic Criminal Appeal No. 23 of 2014 , the Court emphasized the need for courts to scrutinize the conditions of identification to ensure its reliability.
20. Further in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
21. The Court notes that from the evidence, the incident occurred during the day at around 8:30 am in the morning where he met the 3 rd Appellant and another person which clearly denotes that he could recognize his face considering they spent a considerable amount of time while he was riding him and another person to Ngerere, and even alighted and walked to the maize plantation together with the 2 individuals.
22. Further, PW2 testified that the Motor cycle was given to him by the 1 st & 2 nd Appellant who brought it to his home, this is clear that they were well known to each other even prior to the incident herein. To this end I agree with the trial court that the evidence of both PW1 & PW2 was sufficient to demonstrate the Appellants were linked to the said offence. 1 st and 2 nd Appellant were unable to rebut on how the Motor cycle ended up in their custody whereas the 3 rd Appellant did not have any questions in cross examination in respect to PW2 but to PW1 he hinted to a possibility that it is PW1 who gave or hired to him the Motor Cycle.
23. Considering the above and relying in the case of Anjononi & Others v Republic [1980] KLR 59 , I am satisfied that the prosecution presented sufficient evidence linking the Appellants to the crime, and the trial court did not err in its findings.
24. On the third issue, this court is satisfied that the doctrine of recent possession was applicable in this case. This Court cites the case of Athuman Salim Athuman vs Republic [2016] eKLR where the High Court discussed the doctrine to entail where an accused person is found in recent possession of stolen property and cannot offer reasonable explanation how he came into possession of such property that gives rises to a presumption that he is either the thief or receiver.
25. Similarly the High Court in the case of Isaac Nganag Kahiga Alias Peter Nganga Kahiga vs Republic CR APP No 272 of 2005 enumerated the circumstances in which the doctrine of recent possession form the basis of a conviction being that; the property was found with the accused, the property was positively identified to belong to the complainant, and that the property was recently stolen from the complainant, with proof of time being dependent on how easy the stolen property can move from one person to another.
26. This Court is satisfied that the Motor cycle belonged to the Complainant as per the evidence tendered, I am also satisfied that the 1 st & 2 nd Appellant have failed to demonstrate how they ended up in possession of the said Motor cycle or given any evidence to rebut to it being in their possession before giving the same to PW2b two days after the incident.
27. On the fourth issue, the court notes that the defenses raised did not effectively challenge the evidence against them brought forth by the Prosecution. I am satisfied that the defenses were mere denial and did not raise substantial issues to be determined by the trial court.
28. On the fifth issue, on whether the right to be arraigned before court within 24 hours was infringed upon. It is noteworthy, however, that the issue was not raised at the earliest opportunity before the trial Court but was introduced after conviction.
29. In Julius Kamau Mbugua v Republic [2010] KECA 109 (KLR) , the Court of Appeal considered a similar complaint raised late in the proceedings and observed that such a complaint, when raised at the culmination of the trial, may amount to an afterthought intended to undermine the criminal proceedings.
30. The Court further settled the position that violation of the right to be brought before a Court within the prescribed period does not, without more, invalidate the trial or entitle an accused person to an acquittal. The appropriate remedy for the violation of the constitutional right is distinct from the determination of criminal culpability.
31. It is therefore of my considered view that the same is an afterthought and does not warrant an acquittal
32. On the Sixth issue, this court associates itself with the case of Michael Kamoru Guantai v Republic [2013] eKLR , where the court held:
“From the record, there is nothing to show that the Appellant was informed of the right to cross-examine PW1 or was called upon by the trial court to cross-examine PW1. It was incumbent upon the trial court to have informed the Appellant of the right of cross-examination, especially where he was not represented by a legal counsel, and if the Appellant did not have any question to put to the witness, it should have recorded that fact. That is the law and should be the standard procedure in a criminal trial. Thus, that failure by the trial court was a fatal omission which entitles the Appellant to assert that he was not afforded the opportunity to cross-examine those witnesses. It is a kind of judicial error on which a court of law may ordinarily quash the conviction and set aside the sentence which I hereby do.”
33. I associated myself with the above analyzed case and I further find that appellant’s right to challenge evidence that is enshrined in Article 50(2) (k) was breached.
34. This Court holds that that failure to inform an accused of rights conferred by law is not a mere procedural irregularity curable under Section 382 of the Criminal Procedure Code.
35. In the present case, the record does not demonstrate that the 1 st Appellant was informed of the right to have the complainant recalled. More importantly, the complainant's evidence remained untested by the 1 st Appellant through cross-examination. In the circumstances, the failure to recall the complainant after the 1 st Appellant was joined to the proceedings occasioned substantial prejudice and rendered the subsequent proceedings unsafe.
36. I have considered whether this would be an appropriate case for re-trial. I have considered the principles for re-trial enunciated in Benard Lolimo Ekimat V R Criminal Appeal No. 151 of 2004 in which the Court of Appeal held:
“There are many decisions on the question of what appropriate case would attract an order of retrial but on the main, the principle that has been acceptable to court is that each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice require it .
37. The phrase " in the interests of justice " potentially has a broad scope. It includes the right to fair trial, which is a fundamental right of the accused. In the context of the right to a fair trial, the time the case has lasted, the period the appellant was in prison, the weight of the evidence and the possibility of a conviction needs to be considered. In this regard, I find it necessary to emphasize that fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner.
38. I have considered the period the 1 st Appellant has been in prison which is from 16/2/2024 to date. He went through the entire process and he tendered his defence. Having already tendered his defence in the lower court, I find that a retrial will not be without prejudice because the prosecution is already aware of his defence.
39. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. There has to be a fair trial and no miscarriage of justice should be permitted and under no circumstances should prejudice be caused to the accused.
40. On the totality of the evidence on record, I find that the interest of justice in this case does not justify a re-trial of the 1 st Appellant.
41. On the last issue regarding the sentence, the principles guiding interference with sentencing by the appellate Court were properly set out in S vs Malgas 2001 (1) SACR 469 (SCA ) at para 12 where it was held that: -
“ A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”
42. Similarly, in Mokela vs The State (135/11) [2011] ZASCA 166 , the Supreme Court of South Africa held that: -
“ It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served .”
43. The 2 nd & 3 rd Appellant submits that the mandatory nature of the death sentence under section 296(2) of the Penal Code is unconstitutional. The decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR , the Supreme Court held that the mandatory death sentence for murder was unconstitutional. While Muruatetu’s case (Supra) dealt with murder under section 204 of the Penal Code, and has consistently held that the declaration under the Muruatetu case does not extend to other offences, and the courts are enjoined to apply the sentences provided by the various statutes and laws.
44. In the Supreme Court decision in Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment) , the court clarified on the issue of mandatory sentences under section 296 (2) of the Penal Code. It did state that:
“ But even as we down our tools, we consider it paramount to restate the following for the sake of posterity and the development of jurisprudence, in terms of this court’s past decisions on similar cases. In this appeal, we have observed that the High Court substituted the death sentence with a custodial sentence of 30 years’ imprisonment ostensibly on the authority of our decision in the Muruatetu case. This sentence was later affirmed by the Court of Appeal on second appeal, despite the court acknowledging our decision in the Muruatetu case that the mandatory nature of the death sentence only applied to murder convictions and did not extend to robbery with violence ”.
45. Given that the trial court imposed a mandatory death sentence, as provided for in law, this court cannot intervene, reconsider or impose a different sentence.
46. From the foregoing, having found that the Trial Court did not err in law by imposing a mandatory death sentence to the 2 nd & 3 rd Appellant and the rational exercise of discretion pursuant to the principles in Muruatetu case , we uphold the death sentence imposed by the trial court upon the 2 nd and 3 rd Appellants.
Final Orders.
47. In the result, the appeal by the 1 st Appellant against conviction is allowed. The conviction is quashed and the sentence imposed upon him is set aside. Having found that the interests of justice do not justify a retrial, no order for retrial shall issue. The 1 st Appellant is thus acquitted and set free unless otherwise lawfully held.
48. The appeals by the 2 nd and 3 rd Appellants’ against conviction are dismissed. Their appeals against sentence are, equally dismissed. The death sentences imposed upon them are confirmed.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 23 rd Day of July 2026.
HCCRA NO. E107 OF 2025 CHRISTOPHER ONYANCHA & OTHERS VS REPUBLIC Pg. 13