1. Samson Kamari Liavoga, the Appellant, was charged thus;
Count I – Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of the offence were that on 09/07/2022, at Nyahururu Town, jointly armed with a G3 rifle gun, swords and machetes, robbed one David Waruiru Kariuki a Toyota Hilux Bronze in color reg. number KDH 191B (valued at Kshs.3,500,000/-) a phone make Oppo N7 valued at Kshs.59,000/- and cash worth Kshs.3000/- the property of David Wariuru Kariuki and immediately before and after the robbery used actual violence.
Alternative Count – Handling stolen property contrary to Section 322(1) and (2) of the Penal Code.
Count II – Being in possession of ammunition without a licence contrary to Section 4A(1)(a) of the Firearm Act.
2. He was taken through full trial, convicted on Count I and acquitted of the alternative count to Count I and Count II. In the result, he was sentenced to suffer death as prescribed by law.
3. Aggrieved, he preferred an appeal against both the conviction and sentence. In amended grounds of appeal the Appellant states as follows;
1) That the learned trial Magistrate erred in both law and fact by failing to find that the Appellant was not provided with a State funded advocate nor informed of his right to legal representation pursuant to Article 50(2)(g) and (h).
2) That the learned trial Magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to find that the Appellant’s identification was not positive.
3) That the learned trial Magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to appreciate that there was no identification parade conducted in respect of the Appellant.
4) That the learned trial Magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to appreciate that the photographs taken at the scene of the accident were never taken by a scenes of crime officer neither did they provide a nexus between the Appellant and the offence.
5) That the learned trial Magistrate erred in both law and fact by convicting the Appellant yet failed to find that the motor vehicle and other paraphernalia found at the scene were never dusted for fingerprints and thus could not provide the necessary proof that the prosecution require to connect the Appellant with the offence herein,
6) That the learned trial Magistrate erred in both law and fact by dismissing the Appellant’s defence which was cogent and believable and raised credible doubt of the strength of the prosecution’s case.
7) That the death sentence imposed on the Appellant was both harsh and excessive since the mandatory nature of the same has been declared unconstitutional in Ramadhan & 8 Others v Attorney General & Another [2024] KEHC 1173 and Mbugua & 9 Others v Attorney General & 3 Others [2025] KEHC 1248 (KLR).
4. Briefly, facts of the case were that on 9 th July, 2022 David Waruiru Kariuki went home and as he drove into the compound he heard the alarm. Security lights as well as electric lights inside the house were on. He alighted from his motor vehicle Reg. No. KDH 191B Toyota Hilux and went towards the gate where he encountered three men. One of them had a firearm, while the other two were armed with knives. One of the intruders had a mavin hat and also wore a jacket similar to those ordinarily worn by the police while there was one wearing military boots. They forced him to enter the house and he complied. They demanded the car keys. They took from him the keys, a phone and Kshs.3,000/- They drove away and the complainant alerted neighbours.
5. The complainant reported the matter to the police and PW2 No. 95253 P.C. Josphat Lowana was assigned the case. The motor-vehicle had a tracker and with the intervention of the installer it was established that it was moving towards Subukia. They followed and found the motor-vehicle having been involved in an accident at Subukia Hills.
6. Upon arrival at the scene the complainant identified the motor-vehicle registration number KDH 191B as his and some other exhibits were also recovered namely; 3 knives, military boots, NYS Jacket, 3 mavin hats, red, blue and grey in colour; and an Arafat scarf that the Appellant was wearing. Also recovered was one glove. One live ammunition and a cartridge. The Appellant had suffered injuries hence was taken to hospital for treatment. The motor-vehicle was moved to Nyahururu Police Station and the during investigations the Appellant mentioned the names of two of his accomplices.
7. Upon being placed on his defence the Appellant stated that he is an artist and on the fateful date he was at the Equator area carrying out his work when he was hit by a motor-vehicle and was taken to hospital by an unknown person. That he sustained injuries on the body.
8. This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of
seeing and hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in Okeno v Republic [1972] EA 32 as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.
9. The gravamen of the appellant is the fact of the case against him having not been proved to the required standard and his rights having been contravened due to non-compliance with the requirements of the Constitution, and in particular Article 50(2)(g) and (h).
10. To prove the offence of robbery with violence the Prosecution that made allegations against the appellant was required to prove ingredients for the offence as stated in the case of Oluoch v Republic (1985) KLR where the Court of Appeal as follows:
“Under section 296(2) of the Penal Code, robbery with violence is committed in any of the following circumstances;
1. The offender is armed with any dangerous or offensive weapon or instrument.
2. The offender is in company with 1 or more person or persons, or,
3. At or immediately before or immediately after the time of the robbery, the offender wounds, beat strikes or uses other personal violence to any person”
11. Evidence adduced was that one of the intruders/attackers was armed with a firearm which is a device designed to inflict serious harm and/or death. Such a lethal weapon is dangerous. Other offenders were armed with knives which can be dangerous when used to threaten or harm a person. They were three individuals hence the offender was more than one. They did not injure the Complainant but they forced him and others into the house.
12. In Dima Denge Dima & Others v Republic, 2013 eKLR, the Court of Appeal explained further 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.”
13. Two elements of the offence were stablished which was sufficient to prove the charge of robbery with violence in the instant case. It is urged by the Appellant that the identification was not positive. It is however admitted by the Appellant that he was involved in an accident, although his defence suggests that he was hit but was not in the moving vehicle. The Appellant was at the scene when PW2 arrived. Photographs of the scene were taken which included those of the Appellant who had sustained serious injuries. Section 78 of the Evidence Act provides thus;
(1) In criminal proceedings a certificate in the form in the First Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film or an electronic and digital medium submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein.
(2) The court may presume that the signature to any such certificate is genuine.
(3) When a certificate is received in evidence under this section the court may, if it thinks fit, summon and examine the person who gave it.….
14. Photographs were taken by PW3 No. 78498 P.C. Joseph Kipsamo a gazetted officer and scene of crime expert while at Nyahururu police station. He did not visit the scene but some other photographs taken by PW2 at the primary scene were submitted to him. He processed the photographic prints and prepared the certificate thereof then adduced them in evidence. It is not a requirement for the officer taking the photographs to be gazetted. What is mandatory is for the officer preparing the photographs to be gazetted. It was hence procedural for PW2 to hand over the photographs to PW3 who processed and printed them and made a certificate thereof.
15. On the question of failure to conduct an Identification parade. The purpose of conducting an identification parade is to test if the witness is reliable, and of good memory. The complainant saw the suspect after arrest and identified him. Conducting an identification parade would be of no use because the parade would have lost evidential value.
16. This was a case of visual identification. In Roria v Republic [1967] EA 583 , the court stated that;
“A conviction resting entirely on identity invariably causes a degree of uneasiness........That danger is, of course, greater when the only evidence against an Accused Person is identification by one witness and although no one would suggest that conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all circumstance it is safe to act on such identification.”
17. In Cleophas Otieno Wamunga v. Republic [1989] eKLR the Court observed that:
“Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification….”
18. Acknowledging that human memory can at times be distorted, I also appreciate that it can be reconstructive. According to PW1, the complainant, the security lights outside the house were on. Inside the house electric lights were on and the attackers forced them to enter the house prior to demanding for the key to the motor-vehicle. He complied by handing over the key, phone and cash money. He identified the Appellant as the individual who was wearing military boots and had covered himself with an Arafat scarf on the neck.
19. On being found, the Appellant had the Arafat scarf still tied around his neck. He claims to have been going about his business but no explanation was given regarding the manner of dressing with the Arafat scarf around his neck.
20. It is also urged that the exhibits were not dusted for fingerprints to connect the Appellant with the crime. The question of adopting dusting for fingerprints would ideally place a suspect at the scene of crime. However, the issue did not arise at trial. Additionally, considering circumstances that prevailed, the motor-vehicle had an accident and was damaged as seen in the photographs. Evidence was that it had rained and the place was muddy. Forensic integrity was clearly compromised.
21. On the issue of being provided with a State funded advocate nor informed of his right to legal representation. Article 50(2)(g) and (h) of the Constitution provide thus:
Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly
22. The right to representation is provided for by the constitution. As guaranteed, the Appellant was allowed by the court to be represented by counsel of his choice hence his rights were not violated.
23. Finally, the court is faulted for imposing a harsh and excessive sentence. Section 296(2) of the Penal Code provides thus;
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
24. In meting out the sentence the court considered the seriousness of the offence and the penalty as prescribed. To interfere with the sentence of a trial court, it must have acted on wrong principles. The trial court strictly adhered to law. It can not be faulted.
25. In the upshot, the appeal lacks merit. Accordingly, it is dismissed in its entirety.
26. It is so ordered.
HCCRA E027 OF 2023 (RUL.) Page 2 of 2
Count I – Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of the offence were that on 09/07/2022, at Nyahururu Town, jointly armed with a G3 rifle gun, swords and machetes, robbed one David Waruiru Kariuki a Toyota Hilux Bronze in color reg. number KDH 191B (valued at Kshs.3,500,000/-) a phone make Oppo N7 valued at Kshs.59,000/- and cash worth Kshs.3000/- the property of David Wariuru Kariuki and immediately before and after the robbery used actual violence.
Alternative Count – Handling stolen property contrary to Section 322(1) and (2) of the Penal Code.
Count II – Being in possession of ammunition without a licence contrary to Section 4A(1)(a) of the Firearm Act.
2. He was taken through full trial, convicted on Count I and acquitted of the alternative count to Count I and Count II. In the result, he was sentenced to suffer death as prescribed by law.
3. Aggrieved, he preferred an appeal against both the conviction and sentence. In amended grounds of appeal the Appellant states as follows;
1) That the learned trial Magistrate erred in both law and fact by failing to find that the Appellant was not provided with a State funded advocate nor informed of his right to legal representation pursuant to Article 50(2)(g) and (h).
2) That the learned trial Magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to find that the Appellant’s identification was not positive.
3) That the learned trial Magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to appreciate that there was no identification parade conducted in respect of the Appellant.
4) That the learned trial Magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to appreciate that the photographs taken at the scene of the accident were never taken by a scenes of crime officer neither did they provide a nexus between the Appellant and the offence.
5) That the learned trial Magistrate erred in both law and fact by convicting the Appellant yet failed to find that the motor vehicle and other paraphernalia found at the scene were never dusted for fingerprints and thus could not provide the necessary proof that the prosecution require to connect the Appellant with the offence herein,
6) That the learned trial Magistrate erred in both law and fact by dismissing the Appellant’s defence which was cogent and believable and raised credible doubt of the strength of the prosecution’s case.
7) That the death sentence imposed on the Appellant was both harsh and excessive since the mandatory nature of the same has been declared unconstitutional in Ramadhan & 8 Others v Attorney General & Another [2024] KEHC 1173 and Mbugua & 9 Others v Attorney General & 3 Others [2025] KEHC 1248 (KLR).
4. Briefly, facts of the case were that on 9 th July, 2022 David Waruiru Kariuki went home and as he drove into the compound he heard the alarm. Security lights as well as electric lights inside the house were on. He alighted from his motor vehicle Reg. No. KDH 191B Toyota Hilux and went towards the gate where he encountered three men. One of them had a firearm, while the other two were armed with knives. One of the intruders had a mavin hat and also wore a jacket similar to those ordinarily worn by the police while there was one wearing military boots. They forced him to enter the house and he complied. They demanded the car keys. They took from him the keys, a phone and Kshs.3,000/- They drove away and the complainant alerted neighbours.
5. The complainant reported the matter to the police and PW2 No. 95253 P.C. Josphat Lowana was assigned the case. The motor-vehicle had a tracker and with the intervention of the installer it was established that it was moving towards Subukia. They followed and found the motor-vehicle having been involved in an accident at Subukia Hills.
6. Upon arrival at the scene the complainant identified the motor-vehicle registration number KDH 191B as his and some other exhibits were also recovered namely; 3 knives, military boots, NYS Jacket, 3 mavin hats, red, blue and grey in colour; and an Arafat scarf that the Appellant was wearing. Also recovered was one glove. One live ammunition and a cartridge. The Appellant had suffered injuries hence was taken to hospital for treatment. The motor-vehicle was moved to Nyahururu Police Station and the during investigations the Appellant mentioned the names of two of his accomplices.
7. Upon being placed on his defence the Appellant stated that he is an artist and on the fateful date he was at the Equator area carrying out his work when he was hit by a motor-vehicle and was taken to hospital by an unknown person. That he sustained injuries on the body.
8. This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of
seeing and hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in Okeno v Republic [1972] EA 32 as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.
9. The gravamen of the appellant is the fact of the case against him having not been proved to the required standard and his rights having been contravened due to non-compliance with the requirements of the Constitution, and in particular Article 50(2)(g) and (h).
10. To prove the offence of robbery with violence the Prosecution that made allegations against the appellant was required to prove ingredients for the offence as stated in the case of Oluoch v Republic (1985) KLR where the Court of Appeal as follows:
“Under section 296(2) of the Penal Code, robbery with violence is committed in any of the following circumstances;
1. The offender is armed with any dangerous or offensive weapon or instrument.
2. The offender is in company with 1 or more person or persons, or,
3. At or immediately before or immediately after the time of the robbery, the offender wounds, beat strikes or uses other personal violence to any person”
11. Evidence adduced was that one of the intruders/attackers was armed with a firearm which is a device designed to inflict serious harm and/or death. Such a lethal weapon is dangerous. Other offenders were armed with knives which can be dangerous when used to threaten or harm a person. They were three individuals hence the offender was more than one. They did not injure the Complainant but they forced him and others into the house.
12. In Dima Denge Dima & Others v Republic, 2013 eKLR, the Court of Appeal explained further 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.”
13. Two elements of the offence were stablished which was sufficient to prove the charge of robbery with violence in the instant case. It is urged by the Appellant that the identification was not positive. It is however admitted by the Appellant that he was involved in an accident, although his defence suggests that he was hit but was not in the moving vehicle. The Appellant was at the scene when PW2 arrived. Photographs of the scene were taken which included those of the Appellant who had sustained serious injuries. Section 78 of the Evidence Act provides thus;
(1) In criminal proceedings a certificate in the form in the First Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film or an electronic and digital medium submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein.
(2) The court may presume that the signature to any such certificate is genuine.
(3) When a certificate is received in evidence under this section the court may, if it thinks fit, summon and examine the person who gave it.….
14. Photographs were taken by PW3 No. 78498 P.C. Joseph Kipsamo a gazetted officer and scene of crime expert while at Nyahururu police station. He did not visit the scene but some other photographs taken by PW2 at the primary scene were submitted to him. He processed the photographic prints and prepared the certificate thereof then adduced them in evidence. It is not a requirement for the officer taking the photographs to be gazetted. What is mandatory is for the officer preparing the photographs to be gazetted. It was hence procedural for PW2 to hand over the photographs to PW3 who processed and printed them and made a certificate thereof.
15. On the question of failure to conduct an Identification parade. The purpose of conducting an identification parade is to test if the witness is reliable, and of good memory. The complainant saw the suspect after arrest and identified him. Conducting an identification parade would be of no use because the parade would have lost evidential value.
16. This was a case of visual identification. In Roria v Republic [1967] EA 583 , the court stated that;
“A conviction resting entirely on identity invariably causes a degree of uneasiness........That danger is, of course, greater when the only evidence against an Accused Person is identification by one witness and although no one would suggest that conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all circumstance it is safe to act on such identification.”
17. In Cleophas Otieno Wamunga v. Republic [1989] eKLR the Court observed that:
“Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification….”
18. Acknowledging that human memory can at times be distorted, I also appreciate that it can be reconstructive. According to PW1, the complainant, the security lights outside the house were on. Inside the house electric lights were on and the attackers forced them to enter the house prior to demanding for the key to the motor-vehicle. He complied by handing over the key, phone and cash money. He identified the Appellant as the individual who was wearing military boots and had covered himself with an Arafat scarf on the neck.
19. On being found, the Appellant had the Arafat scarf still tied around his neck. He claims to have been going about his business but no explanation was given regarding the manner of dressing with the Arafat scarf around his neck.
20. It is also urged that the exhibits were not dusted for fingerprints to connect the Appellant with the crime. The question of adopting dusting for fingerprints would ideally place a suspect at the scene of crime. However, the issue did not arise at trial. Additionally, considering circumstances that prevailed, the motor-vehicle had an accident and was damaged as seen in the photographs. Evidence was that it had rained and the place was muddy. Forensic integrity was clearly compromised.
21. On the issue of being provided with a State funded advocate nor informed of his right to legal representation. Article 50(2)(g) and (h) of the Constitution provide thus:
Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly
22. The right to representation is provided for by the constitution. As guaranteed, the Appellant was allowed by the court to be represented by counsel of his choice hence his rights were not violated.
23. Finally, the court is faulted for imposing a harsh and excessive sentence. Section 296(2) of the Penal Code provides thus;
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
24. In meting out the sentence the court considered the seriousness of the offence and the penalty as prescribed. To interfere with the sentence of a trial court, it must have acted on wrong principles. The trial court strictly adhered to law. It can not be faulted.
25. In the upshot, the appeal lacks merit. Accordingly, it is dismissed in its entirety.
26. It is so ordered.
HCCRA E027 OF 2023 (RUL.) Page 2 of 2