1. The appellant herein was charged with two counts, Convicted and sentence to 40 years imprisonment for the offence of Robbery with violence contrary to section 295 as read with section 296(2) of the penal code. The particulars of the offence in respect to count one, are that, on the 10th day of December 2022 at around 1500hrs at Kibiko location in Kajiado west- Sub – County within Kajiado jointly with others not before the court, while armed with a pistol robbed DAVID MUNTENT, the following; iPhone 13 worth 160,000, and 1phone 10 valued at ksh 20,000, Gold watch valued at Ksh. 65,000, shoes valued ksh 5000, wallet valued ksh 4,000, laptop and laptop bag valued ksh 90,000 and cash ksh 128,000 and immediately before the time of such robbery he threatened to shot him with a pistol.
2. In count two, the accused is also charged with the offence of robbery with violence contrary to section 295 as read with section 296 of the penal code. The particulars of the offence are that on the same day, time and place as in count one, jointly with others not before the court, while armed with a pistol robbed SEIN MUNTENT of her mobile phone make iPhone 12 worth ksh 150,000, wedding ring worth ksh 65,000, necklace chain valued at ksh 5,000, leather hand bag and assorted items worth ksh 7,000 and immediately before the time of such robbery he threatened to shot her with a pistol.
3. In count three, the accused is also charged with the offence of robbery with violence contrary to section 295 as read with section 296 of the penal code. The particulars of the offence are that on the same day, time and place as in count one, jointly with others not before the court, while armed with a pistol robbed SEYIAN MUNTENT of her mobile phone make iPhone 10 worth ksh 20,000, leather hand bag and assorted items worth ksh 5,000 and immediately before the time of such robbery he threatened to shot her with a pistol.
4. Dissatisfied with the decision of the Magistrate the appellant through Onkendi Ombiro & company Advocate filed the present appeal setting forth the following 10 grounds;
1. THAT the learned Magistrate erred in law and in fact in allowing the respondent claim and in finding that the respondent has on a balance of probabilities(sic) prove his case.
2. THAT the learned trial Magistrate erred in law and fact by admitting insufficient evidence to establish guilt beyond reasonable doubt.
3. THAT the learned trial Magistrate erred in law and fact in finding the appellant 100% guilty for robbery with violence.
4. THAT the learned trial Magistrate erred in law and fact by permitting the conclusions of unjust identification parade lacking legal and factual basis.
5. THAT the learned trial Magistrate erred in law and fact relying on the prejudiced and circumstantial evidence lacking legal and factual basis.
6. THAT the learned trial Magistrate erred in law and in fact by ignoring clearly the unlawful and unjust violation of the appellant constitutional rights during the investigations.
7. THAT the learned trial Magistrate erred in law and in fact by considering issued that were not pleaded by the parties in their pleadings nor adduced in evidence thus effectively bending/distorting the rule of law and natural justice
8. THAT the learned trial Magistrate erred in law and fact by disregarding the appellant defence.
9. THAT the learned trial Magistrate erred in law and in fact and misdirected herself and based her findings on the wrong considerations.
10. THAT the learned trial Magistrate erred in law and in fact by failing to consider and appreciate the absence of evidence of fire arm and alleged stolen items from the appellant.
5. The appellant therefore prays that the judgement be set aside and the suit in the lower court not be allowed as pleaded in the charge sheet.
6. The state filed grounds of opposition arguing that the appeal is misconceived and unsubstantiated as the appellant was properly convicted and sentenced by the trial court and therefore there is no basis for this court to interfere with the magistrate court finding on both conviction and sentence.
Prosecution case
7. PW1 DAVID MUNTENT the first complainant in count one testified and told the court that on 10th December 2022 at around 3:00 pm he visited their construction site in Kibiko in Ngong in the company of his wife, the complainant in count 2 and his daughter, the complainant in count 3. On arrival, they found the entrance was closed and the watchman was not there. They called him and he informed them that he had gone to Ngong town and would be returning shortly. The witness stated that they decided to use an opening along the fence. He went through the opening and accessed the compound. His wife and daughter were closely behind about three meters behind him. While in the compound, he heard someone speaking to them telling them to be quiet. When he turned back, he saw a man pointing a gun at them and telling them to go where he was. they obeyed and went where he was. The witness asked the gun man wanted he wanted and that he would give all that he wanted but instead the gun man shouted at him ordering him to shut up and lie down. He hesitated and the gun man cocked his gun to demonstrate that it was not a toy. They all obeyed and knelt down. Another person with a yellow helmet joined them. The gunman demanded that they surrender all that they had. They complied and gave all the items mentioned in the particulars of the charge. The robbers went to his car, a Toyota Prado and ransacked it and took the laptop and its bag and his wife’s and daughter’s handbags. The attackers then jumped into a motor cycle and escaped towards Kikuyu direction. The gun man was the one who rode the motorcycle and the other sat behind carrying the bag. They also took his car Key.
8. The witness reported the matter to the police, described how the gun man looked like noting that nothing was peculiar with his face or teeth and recorded statement. He was subsequently called and informed of arrest and requested to proceed to the police station together with his wife and daughter for identification purposes. In a group of 9 people, the witness was able to identify the accused person as the one who robbed them on the material day.
9. In cross examination, the witness confirmed that the accused person and another were the one who robbed them and he identified him at the parade by touching.
10. The evidence of PW2 SEIN MUNTENT AND PW3 SEIYAN REGAL MUNTENT are in all material aspect similar to the evidence of PW1 with whom they were with on the day of the robberies. It would serve no purpose to repeat the same but I shall however make reference to them later on in this judgement.
11. PW4 Hillary Timu Koileken testified and told the court that he worked as a caretaker at the home of David Muntet. That on 10th December 2022 at 3:00pm he had gone to Ngong town and while there his boss pw1 called and told him go open the gate. He took a motorcycle and on arrival he met his boss wife and daughter who told him to look for him because he had been attacked. He asked the rider who had brought him to help. On their way they met him returning. He had no shoes on. They pursued the robbers in the directions they escaped to without success. He was later called to the police station to record statement.
12. PW5 NO 86555 CPL Emmanuel Ekai from Ngong DCI told the court that on 9th January 2023 at around 14:30 hrs while on patrol along Rongai, Kiserian and Ngong with his colleagues Sergeant Nthiva, PC Mureithi and PC Shem saw a motor cycle without a number plate behind Milele Mall with one person. They flagged the motor cycle to stop but the ride refused and drove on. He alighted together with PC Mureithi and followed it to mathari area where they found the rider. The rider was arrested and questioned on the number plate and he told them that the motor cycle was from the mechanic. He took them Mugo financiers who denied that the motor cycle belonged to them. The rider told them that he had taken another motor cycle for sale at the Mugos. He showed them the motor cycle and the same was taken to the police station together with the rider. The witness later learnt that the person they had arrested had been identified in a robbery identification parade in relation to a robbery that had taken place sometimes back.
13. He told the court that they arrested the accused who was riding a motor cycle without number plate as there had been reported cases of robberies where victims mention that the motor cycle involved had no registration plates.
14. In cross examination, the witness told the court that he arrested the accused for riding a motor cycle without number plates and took two motor cycles to the police station. One with a registration plate and the other without.
15. PW6 NO 235967 Inspector of police KENNETH BOSIRE testified and told the court that he conducted the identification parade at Ngong police station comprised of 10 persons including the accused herein. The members of the parade were all men of similar structure and size like the accused. The accused was identified first by David Muntet PW1 then followed by SEIN Muntet PW2 and lastly by PW3 SEYIAN MUNTET. All the three witnesses identified the accused by touching the last two after the accused changed positions.
16. In cross examination by counsel for the accused, the witness denied the suggestion that the investigating officer had shared the names of the accused to him beforehand. He also told the court that he explained the accused his rights including having his advocate, parents or friend during the parade exercise.
17. PW7 NO QUINTO ODEKE from DCI HQS Crime research and intelligence Bureau attached to Safaricom Head Quarters Security department, law enforcement liaison office told the court that on 13th January 2023 Safaricom received a request in writing through a letter to produce IMEA History and call data records for the period 1st December 2022 to 13th January 2023 involving the following numbers; 0793818210, 0746079572, 0722313003, 0722104790, 0797717883, 0115443038, 0741643172 and 0768418793.
18. He generated the information required and of interest was number 0746079572 which is associated with Samuel Mburu of ID Number 36814608. He told the court that the investigating officer wanted to establish the whereabout of the accused on 10th December 2022 between the hours 14:00hrs to 16:00 hrs. The witness established that the appellant was at Ngong Kibiko at 1402 hrs and at Ruthigiti at 1514hrs.
19. PW8 NO 91691 Corporal Esther Orolo investigated this matter and told the court that she was in the officer in January 2023, when the DCI patrol team brought 2 young men who were arrested within mathari area riding on a numberless motor cycle. Upon investigations the young men gave explanations that they had brought the motor cycles for repair. The officer stated that there had been reports of robberies by 2 individuals riding on numberless motor cycle. The two were then placed in custody pursuant to custodial orders obtained as investigation proceeded. It was established that motorcycle registration number KMFI 225A Detained by the police belonged to Samuel Kioi Mburu according to NTSA records, and was bought by appellant from Mogo Auto Ltd based on Ngong Road bought on credit. According to the documents produced and exhibited by the prosecution Exh 6, the motor cycle in question was released to the appellant on 16th October 2021 by Mogo auto Ltd awaiting processing of the number plates. The delay in processing the number plates was occasioned by Covid-19 situation at the time.
20. The investigating officer submitted the appellant phone to Safaricom for data analysis and tendered its finding to court. The report on the data analysis showed that the phone number 0746079572 was registered in the name of the appellant whose identification number is 36814608. The data from Safaricom showed that on 10th December 2022 the appellant gadget was around Ngong Kibiko.
21. Having been satisfied that the appellant was responsible for the robbery that took place on 10th December 2022 he charged him. He told the court the gun used on the day of robbery was never recovered and so were the items stolen.
22. Based on the prosecution evidence, the trial court was placed on his defence. He elected to give sworn testimony which he did on 11th January 2024.
23. He told the court that on 10th December 2022 at around 2:02 hrs being a boda boda operator, he had taken a customer to Ngong and later on at 3:14 pm went to Ruthigiti in Limuru on his way home.
24. He told the court that on 9th January 2023, he was arrested alone in Ngong and taken to the police station. That there was no complaint lodged against him. He told the court that he participated in the parade which comprised 10 people of different heights and that he was not told to call a friend, an Advocate or a friend.
25. Under intense cross examination by the learned prosecutor Madam Rose Kihumba, the appellant admitted that the Safaricom data shows that he was around kibiko area around 11:40am. 11:45am, 11:50am and 1:16 pm. He told the court that he had never seen the complaints in this case prior to ID parade conducted at the police station. Further, that he signed the ID Parade form because he was told to so.
26. Both the appellant counsel and the prosecuting counsel filed their submissions dated 3rd September 2025 and 25th march 2026 respectively which I have considered in this judgement.
Analysis and Determination.
27. This being a first appellate court, I am required to re-evaluate and re-analyze the evidence on record afresh and draw my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. (See Okeno v Republic [1972] EA 32).
28. As noted in the opening paragraph of this judgement, the appellant was charged with three counts of robbery with violence, convicted and sentenced to serve 40 years imprisonment. I have evaluated the entire evidence by the prosecution and the defense and although parties came up with different issues for determination, which I shall deal with this judgement, I find that broadly the issue for determination in this appeal is
1. Whether the offence of robbery with violence with which the appellant was charged with was proved beyond reasonable doubt.
29. The prosecution tendered evidence of the robbery through four main witnesses; PW1 David Muntet, his wife PW2 Sian Muntet and their daughter Seiyan. The three witnesses gave accounts of the events of 10th December 2022 in a clear and lucid manner. The Muntet family had attended a church service in Winners Chapel Likoni road and thereafter drove to Kibiko area of Ngong to check on the progress of a construction that was going on there. They did not find a caretaker PW4 at the site and as they waited for him PW1 decided to access the site through an opening along the fence. It was then that they were attacked and robbed at gun point as captured in the evidence on record.
30. Section 296(2) of the Penal Code provides that a person commits the offence of robbery with violence if, at the time of the robbery or immediately before or after, he—
i. is armed with any dangerous or offensive weapon or instrument, or
ii. is in company with one or more other persons, or
iii. immediately before or after the robbery, wounds, beats, strikes, or uses any other personal violence to any person.
31. It is sufficient if any one of the above ingredients is proved (Oluoch v Republic [1985] KLR 549).
32. It is the prosecution case that the appellant in this case was armed with a pistol and in the company of another when the complainants were attacked. He threatened to use the fire arm if the complaint ignored his orders and indeed when PW1 hesitated on being ordered to lie down, the appellant is said to have cocked his gun to warn the witness that what he had was not a toy but a real gun. The evidence of robbery was well corroborated by PW4, the caretaker who arrived at the construction site shortly after the fact and tried to pursue the robbers using a motor cycle. On his way he met PW1 who had no shoes on. The evidence of PW1 that the attackers took his shoes was well supported by the testimony of caretaker.
33. On the available evidence, I am satisfied that the three complainants were robbed by two armed robbers and at the time of the robbery, there was threat of personal harm against them.
34. After the robbery, the PW1, PW2 and PW3 made a report at the Ngong police station recorded their statements and investigations commenced to trace and apprehend those responsible.
35. On 9th January 2023, DCI officers on normal patrol and in response to complaints of frequent robberies by individual riding on numberless motor cycle flagged down a rider along Rongai, Kiserian Ngong road who refused to stop. The officers pursued them on foot and caught up with them. Upon interrogations, the appellant told the officers that he was taking one of the motor cycles to the mechanic. Unconvinced the officers escorted him and others to the police station where it was established that he was the owner of motor cycle registration number KMFI 225A red in colour. The officer recalled of a robbery incident reported at the police station earlier and the description given of a red motor cycle and decided to subject the appellant to further investigations.
36. An identification parade was conducted by inspector Kenneth Bosire on 13th January 2023 and the three complainants called to see whether they could pick the suspect from the group of Ten (10) members line-up for that purpose. PW1 identified the appellant who was standing between Dennis Njeri and Victor Kalega by touching. The other two witnesses equally identified the appellant after he switched positions.
37. The appellant though counsel challenged the Identification parade pointing out that the same was done contrary to the police standing orders. In particular, that the complainant only asked the appellant to smile and not the other members of the parade and therefore he was treated unfairly. It should be noted that whereas it is true that the parade should be conducted strictly in accordance with the law, I observe that the first three prosecution witnesses gave clear visual description of the attacker. PW1 stated that he could described to the police how the gun man looked like and could even draw his face. He observed that there was nothing peculiar with the appellant face or teeth. PW2 on her part testified and stated that “we gave the police the description of the robbers and told them we are able to identify them”. PW3 described the attacker as one wearing a black faded jacket, he was dark and had short kept hair and was of medium height and body size.
38. The investigating officer confirmed in his testimony that the three witness had given description of the attacker. It is on the basis of the information received that the investigating officer constituted a line-up comprised of people with near similar attributes as those of a suspect to ensure the identification process is objective. It is worth noting that the descriptions of the appellant given by the three witnesses, PW1, PW2 and PW3 are consistent and are congruent with each other. There was therefore no mistake in identification of the appellant. The identification parade form shows that the appellant consented to appear on the parade and had no recorded objection concerning the arrangements or the persons on the parade. The court however note that part B of the parade form was not complied with. As to whether the appellant was informed that, if he desired, a friend or solicitor may be present, the reply thereto is indicated as N/A (Not applicable) and the signature of the appellant is missing. The absence of the appellant response to the above and the fact that he never appended his signature to part B of the form gives credence to the assertion that he was never informed of this requirement.
39. This omission by the identification parade officer does not in my view take away the fact that the appellant was positively identified as the perpetrator of the offence. Where an offence and the involvement of an accused is solely based on identification parade, then substantial departure from the requirements of law in that regard would in appropriate cases invalidate a conviction based on it. The deficiencies in the conduct of ID parade must be examined alongside other corroborative available evidence.
40. The appellant phone number was taken by the police and call records analysed by Safaricom on request from the DCI. PW7 QUINTO ODEKE produced data in respect of the appellant records which showed that on the material day of the robbery, at 11:40am, 11:45am, 11:50am and 1:16 pm the appellant was around Kibiko the general area where the robbery took place. This piece of evidence corroborates witness evidence that indeed they were robbed by the appellant. It was established that the phone number was registered in the name of the appellant whose national identification card number is 36814608.
41. I do not agree with the appellant that the trial court did not consider his defence. Almost 3 pages of the trial court judgment (28 to 30) discussed the appellant evidence in chief and his response in cross-examination. The court after analysing the appellant defence disagree with his assertions holding that the prosecution witnesses established that the appellant was in Kibiko area when the offence of robbery against the complainant occurred.
42. The appellant submitted that the evidence presented by the prosecution upon which the court relied to found a conviction was unsupported by recovery of the weapon used and the items allegedly stolen from the complainants. Recovery of weapons used in commission of an offence is important evidence to support a charge against offenders. However non- recovery of the weapon or items stolen does not automatically lead to an acquittal. The finding of guilt must be based on the totality of the evidence presented to court. In this case, the witnesses’ testimonies identified the appellant as the robber and Circumstantial evidence placed him at the scene of crime on the material day.
43. I am also not persuaded that the trial court failed to consider the appellant mitigation. The court took into considerations all the relevant factors in meting out the sentence.
44. However, it is my view that although the sentence for the offence of robbery with violence is death, courts have a discretion to impose any other sentence other than death as is the case herein. I consider 40 years imprisonment harsh and excessive in the circumstances of this case. The appellant is thus sentenced to serve 20 years imprisonment effective from 22nd March 2024 the date he was sentenced in the lower court.
45. Consequently therefore, and in view of the finding above, the appeal on Conviction is dismissed and sentence varied as above.
2. In count two, the accused is also charged with the offence of robbery with violence contrary to section 295 as read with section 296 of the penal code. The particulars of the offence are that on the same day, time and place as in count one, jointly with others not before the court, while armed with a pistol robbed SEIN MUNTENT of her mobile phone make iPhone 12 worth ksh 150,000, wedding ring worth ksh 65,000, necklace chain valued at ksh 5,000, leather hand bag and assorted items worth ksh 7,000 and immediately before the time of such robbery he threatened to shot her with a pistol.
3. In count three, the accused is also charged with the offence of robbery with violence contrary to section 295 as read with section 296 of the penal code. The particulars of the offence are that on the same day, time and place as in count one, jointly with others not before the court, while armed with a pistol robbed SEYIAN MUNTENT of her mobile phone make iPhone 10 worth ksh 20,000, leather hand bag and assorted items worth ksh 5,000 and immediately before the time of such robbery he threatened to shot her with a pistol.
4. Dissatisfied with the decision of the Magistrate the appellant through Onkendi Ombiro & company Advocate filed the present appeal setting forth the following 10 grounds;
1. THAT the learned Magistrate erred in law and in fact in allowing the respondent claim and in finding that the respondent has on a balance of probabilities(sic) prove his case.
2. THAT the learned trial Magistrate erred in law and fact by admitting insufficient evidence to establish guilt beyond reasonable doubt.
3. THAT the learned trial Magistrate erred in law and fact in finding the appellant 100% guilty for robbery with violence.
4. THAT the learned trial Magistrate erred in law and fact by permitting the conclusions of unjust identification parade lacking legal and factual basis.
5. THAT the learned trial Magistrate erred in law and fact relying on the prejudiced and circumstantial evidence lacking legal and factual basis.
6. THAT the learned trial Magistrate erred in law and in fact by ignoring clearly the unlawful and unjust violation of the appellant constitutional rights during the investigations.
7. THAT the learned trial Magistrate erred in law and in fact by considering issued that were not pleaded by the parties in their pleadings nor adduced in evidence thus effectively bending/distorting the rule of law and natural justice
8. THAT the learned trial Magistrate erred in law and fact by disregarding the appellant defence.
9. THAT the learned trial Magistrate erred in law and in fact and misdirected herself and based her findings on the wrong considerations.
10. THAT the learned trial Magistrate erred in law and in fact by failing to consider and appreciate the absence of evidence of fire arm and alleged stolen items from the appellant.
5. The appellant therefore prays that the judgement be set aside and the suit in the lower court not be allowed as pleaded in the charge sheet.
6. The state filed grounds of opposition arguing that the appeal is misconceived and unsubstantiated as the appellant was properly convicted and sentenced by the trial court and therefore there is no basis for this court to interfere with the magistrate court finding on both conviction and sentence.
Prosecution case
7. PW1 DAVID MUNTENT the first complainant in count one testified and told the court that on 10th December 2022 at around 3:00 pm he visited their construction site in Kibiko in Ngong in the company of his wife, the complainant in count 2 and his daughter, the complainant in count 3. On arrival, they found the entrance was closed and the watchman was not there. They called him and he informed them that he had gone to Ngong town and would be returning shortly. The witness stated that they decided to use an opening along the fence. He went through the opening and accessed the compound. His wife and daughter were closely behind about three meters behind him. While in the compound, he heard someone speaking to them telling them to be quiet. When he turned back, he saw a man pointing a gun at them and telling them to go where he was. they obeyed and went where he was. The witness asked the gun man wanted he wanted and that he would give all that he wanted but instead the gun man shouted at him ordering him to shut up and lie down. He hesitated and the gun man cocked his gun to demonstrate that it was not a toy. They all obeyed and knelt down. Another person with a yellow helmet joined them. The gunman demanded that they surrender all that they had. They complied and gave all the items mentioned in the particulars of the charge. The robbers went to his car, a Toyota Prado and ransacked it and took the laptop and its bag and his wife’s and daughter’s handbags. The attackers then jumped into a motor cycle and escaped towards Kikuyu direction. The gun man was the one who rode the motorcycle and the other sat behind carrying the bag. They also took his car Key.
8. The witness reported the matter to the police, described how the gun man looked like noting that nothing was peculiar with his face or teeth and recorded statement. He was subsequently called and informed of arrest and requested to proceed to the police station together with his wife and daughter for identification purposes. In a group of 9 people, the witness was able to identify the accused person as the one who robbed them on the material day.
9. In cross examination, the witness confirmed that the accused person and another were the one who robbed them and he identified him at the parade by touching.
10. The evidence of PW2 SEIN MUNTENT AND PW3 SEIYAN REGAL MUNTENT are in all material aspect similar to the evidence of PW1 with whom they were with on the day of the robberies. It would serve no purpose to repeat the same but I shall however make reference to them later on in this judgement.
11. PW4 Hillary Timu Koileken testified and told the court that he worked as a caretaker at the home of David Muntet. That on 10th December 2022 at 3:00pm he had gone to Ngong town and while there his boss pw1 called and told him go open the gate. He took a motorcycle and on arrival he met his boss wife and daughter who told him to look for him because he had been attacked. He asked the rider who had brought him to help. On their way they met him returning. He had no shoes on. They pursued the robbers in the directions they escaped to without success. He was later called to the police station to record statement.
12. PW5 NO 86555 CPL Emmanuel Ekai from Ngong DCI told the court that on 9th January 2023 at around 14:30 hrs while on patrol along Rongai, Kiserian and Ngong with his colleagues Sergeant Nthiva, PC Mureithi and PC Shem saw a motor cycle without a number plate behind Milele Mall with one person. They flagged the motor cycle to stop but the ride refused and drove on. He alighted together with PC Mureithi and followed it to mathari area where they found the rider. The rider was arrested and questioned on the number plate and he told them that the motor cycle was from the mechanic. He took them Mugo financiers who denied that the motor cycle belonged to them. The rider told them that he had taken another motor cycle for sale at the Mugos. He showed them the motor cycle and the same was taken to the police station together with the rider. The witness later learnt that the person they had arrested had been identified in a robbery identification parade in relation to a robbery that had taken place sometimes back.
13. He told the court that they arrested the accused who was riding a motor cycle without number plate as there had been reported cases of robberies where victims mention that the motor cycle involved had no registration plates.
14. In cross examination, the witness told the court that he arrested the accused for riding a motor cycle without number plates and took two motor cycles to the police station. One with a registration plate and the other without.
15. PW6 NO 235967 Inspector of police KENNETH BOSIRE testified and told the court that he conducted the identification parade at Ngong police station comprised of 10 persons including the accused herein. The members of the parade were all men of similar structure and size like the accused. The accused was identified first by David Muntet PW1 then followed by SEIN Muntet PW2 and lastly by PW3 SEYIAN MUNTET. All the three witnesses identified the accused by touching the last two after the accused changed positions.
16. In cross examination by counsel for the accused, the witness denied the suggestion that the investigating officer had shared the names of the accused to him beforehand. He also told the court that he explained the accused his rights including having his advocate, parents or friend during the parade exercise.
17. PW7 NO QUINTO ODEKE from DCI HQS Crime research and intelligence Bureau attached to Safaricom Head Quarters Security department, law enforcement liaison office told the court that on 13th January 2023 Safaricom received a request in writing through a letter to produce IMEA History and call data records for the period 1st December 2022 to 13th January 2023 involving the following numbers; 0793818210, 0746079572, 0722313003, 0722104790, 0797717883, 0115443038, 0741643172 and 0768418793.
18. He generated the information required and of interest was number 0746079572 which is associated with Samuel Mburu of ID Number 36814608. He told the court that the investigating officer wanted to establish the whereabout of the accused on 10th December 2022 between the hours 14:00hrs to 16:00 hrs. The witness established that the appellant was at Ngong Kibiko at 1402 hrs and at Ruthigiti at 1514hrs.
19. PW8 NO 91691 Corporal Esther Orolo investigated this matter and told the court that she was in the officer in January 2023, when the DCI patrol team brought 2 young men who were arrested within mathari area riding on a numberless motor cycle. Upon investigations the young men gave explanations that they had brought the motor cycles for repair. The officer stated that there had been reports of robberies by 2 individuals riding on numberless motor cycle. The two were then placed in custody pursuant to custodial orders obtained as investigation proceeded. It was established that motorcycle registration number KMFI 225A Detained by the police belonged to Samuel Kioi Mburu according to NTSA records, and was bought by appellant from Mogo Auto Ltd based on Ngong Road bought on credit. According to the documents produced and exhibited by the prosecution Exh 6, the motor cycle in question was released to the appellant on 16th October 2021 by Mogo auto Ltd awaiting processing of the number plates. The delay in processing the number plates was occasioned by Covid-19 situation at the time.
20. The investigating officer submitted the appellant phone to Safaricom for data analysis and tendered its finding to court. The report on the data analysis showed that the phone number 0746079572 was registered in the name of the appellant whose identification number is 36814608. The data from Safaricom showed that on 10th December 2022 the appellant gadget was around Ngong Kibiko.
21. Having been satisfied that the appellant was responsible for the robbery that took place on 10th December 2022 he charged him. He told the court the gun used on the day of robbery was never recovered and so were the items stolen.
22. Based on the prosecution evidence, the trial court was placed on his defence. He elected to give sworn testimony which he did on 11th January 2024.
23. He told the court that on 10th December 2022 at around 2:02 hrs being a boda boda operator, he had taken a customer to Ngong and later on at 3:14 pm went to Ruthigiti in Limuru on his way home.
24. He told the court that on 9th January 2023, he was arrested alone in Ngong and taken to the police station. That there was no complaint lodged against him. He told the court that he participated in the parade which comprised 10 people of different heights and that he was not told to call a friend, an Advocate or a friend.
25. Under intense cross examination by the learned prosecutor Madam Rose Kihumba, the appellant admitted that the Safaricom data shows that he was around kibiko area around 11:40am. 11:45am, 11:50am and 1:16 pm. He told the court that he had never seen the complaints in this case prior to ID parade conducted at the police station. Further, that he signed the ID Parade form because he was told to so.
26. Both the appellant counsel and the prosecuting counsel filed their submissions dated 3rd September 2025 and 25th march 2026 respectively which I have considered in this judgement.
Analysis and Determination.
27. This being a first appellate court, I am required to re-evaluate and re-analyze the evidence on record afresh and draw my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. (See Okeno v Republic [1972] EA 32).
28. As noted in the opening paragraph of this judgement, the appellant was charged with three counts of robbery with violence, convicted and sentenced to serve 40 years imprisonment. I have evaluated the entire evidence by the prosecution and the defense and although parties came up with different issues for determination, which I shall deal with this judgement, I find that broadly the issue for determination in this appeal is
1. Whether the offence of robbery with violence with which the appellant was charged with was proved beyond reasonable doubt.
29. The prosecution tendered evidence of the robbery through four main witnesses; PW1 David Muntet, his wife PW2 Sian Muntet and their daughter Seiyan. The three witnesses gave accounts of the events of 10th December 2022 in a clear and lucid manner. The Muntet family had attended a church service in Winners Chapel Likoni road and thereafter drove to Kibiko area of Ngong to check on the progress of a construction that was going on there. They did not find a caretaker PW4 at the site and as they waited for him PW1 decided to access the site through an opening along the fence. It was then that they were attacked and robbed at gun point as captured in the evidence on record.
30. Section 296(2) of the Penal Code provides that a person commits the offence of robbery with violence if, at the time of the robbery or immediately before or after, he—
i. is armed with any dangerous or offensive weapon or instrument, or
ii. is in company with one or more other persons, or
iii. immediately before or after the robbery, wounds, beats, strikes, or uses any other personal violence to any person.
31. It is sufficient if any one of the above ingredients is proved (Oluoch v Republic [1985] KLR 549).
32. It is the prosecution case that the appellant in this case was armed with a pistol and in the company of another when the complainants were attacked. He threatened to use the fire arm if the complaint ignored his orders and indeed when PW1 hesitated on being ordered to lie down, the appellant is said to have cocked his gun to warn the witness that what he had was not a toy but a real gun. The evidence of robbery was well corroborated by PW4, the caretaker who arrived at the construction site shortly after the fact and tried to pursue the robbers using a motor cycle. On his way he met PW1 who had no shoes on. The evidence of PW1 that the attackers took his shoes was well supported by the testimony of caretaker.
33. On the available evidence, I am satisfied that the three complainants were robbed by two armed robbers and at the time of the robbery, there was threat of personal harm against them.
34. After the robbery, the PW1, PW2 and PW3 made a report at the Ngong police station recorded their statements and investigations commenced to trace and apprehend those responsible.
35. On 9th January 2023, DCI officers on normal patrol and in response to complaints of frequent robberies by individual riding on numberless motor cycle flagged down a rider along Rongai, Kiserian Ngong road who refused to stop. The officers pursued them on foot and caught up with them. Upon interrogations, the appellant told the officers that he was taking one of the motor cycles to the mechanic. Unconvinced the officers escorted him and others to the police station where it was established that he was the owner of motor cycle registration number KMFI 225A red in colour. The officer recalled of a robbery incident reported at the police station earlier and the description given of a red motor cycle and decided to subject the appellant to further investigations.
36. An identification parade was conducted by inspector Kenneth Bosire on 13th January 2023 and the three complainants called to see whether they could pick the suspect from the group of Ten (10) members line-up for that purpose. PW1 identified the appellant who was standing between Dennis Njeri and Victor Kalega by touching. The other two witnesses equally identified the appellant after he switched positions.
37. The appellant though counsel challenged the Identification parade pointing out that the same was done contrary to the police standing orders. In particular, that the complainant only asked the appellant to smile and not the other members of the parade and therefore he was treated unfairly. It should be noted that whereas it is true that the parade should be conducted strictly in accordance with the law, I observe that the first three prosecution witnesses gave clear visual description of the attacker. PW1 stated that he could described to the police how the gun man looked like and could even draw his face. He observed that there was nothing peculiar with the appellant face or teeth. PW2 on her part testified and stated that “we gave the police the description of the robbers and told them we are able to identify them”. PW3 described the attacker as one wearing a black faded jacket, he was dark and had short kept hair and was of medium height and body size.
38. The investigating officer confirmed in his testimony that the three witness had given description of the attacker. It is on the basis of the information received that the investigating officer constituted a line-up comprised of people with near similar attributes as those of a suspect to ensure the identification process is objective. It is worth noting that the descriptions of the appellant given by the three witnesses, PW1, PW2 and PW3 are consistent and are congruent with each other. There was therefore no mistake in identification of the appellant. The identification parade form shows that the appellant consented to appear on the parade and had no recorded objection concerning the arrangements or the persons on the parade. The court however note that part B of the parade form was not complied with. As to whether the appellant was informed that, if he desired, a friend or solicitor may be present, the reply thereto is indicated as N/A (Not applicable) and the signature of the appellant is missing. The absence of the appellant response to the above and the fact that he never appended his signature to part B of the form gives credence to the assertion that he was never informed of this requirement.
39. This omission by the identification parade officer does not in my view take away the fact that the appellant was positively identified as the perpetrator of the offence. Where an offence and the involvement of an accused is solely based on identification parade, then substantial departure from the requirements of law in that regard would in appropriate cases invalidate a conviction based on it. The deficiencies in the conduct of ID parade must be examined alongside other corroborative available evidence.
40. The appellant phone number was taken by the police and call records analysed by Safaricom on request from the DCI. PW7 QUINTO ODEKE produced data in respect of the appellant records which showed that on the material day of the robbery, at 11:40am, 11:45am, 11:50am and 1:16 pm the appellant was around Kibiko the general area where the robbery took place. This piece of evidence corroborates witness evidence that indeed they were robbed by the appellant. It was established that the phone number was registered in the name of the appellant whose national identification card number is 36814608.
41. I do not agree with the appellant that the trial court did not consider his defence. Almost 3 pages of the trial court judgment (28 to 30) discussed the appellant evidence in chief and his response in cross-examination. The court after analysing the appellant defence disagree with his assertions holding that the prosecution witnesses established that the appellant was in Kibiko area when the offence of robbery against the complainant occurred.
42. The appellant submitted that the evidence presented by the prosecution upon which the court relied to found a conviction was unsupported by recovery of the weapon used and the items allegedly stolen from the complainants. Recovery of weapons used in commission of an offence is important evidence to support a charge against offenders. However non- recovery of the weapon or items stolen does not automatically lead to an acquittal. The finding of guilt must be based on the totality of the evidence presented to court. In this case, the witnesses’ testimonies identified the appellant as the robber and Circumstantial evidence placed him at the scene of crime on the material day.
43. I am also not persuaded that the trial court failed to consider the appellant mitigation. The court took into considerations all the relevant factors in meting out the sentence.
44. However, it is my view that although the sentence for the offence of robbery with violence is death, courts have a discretion to impose any other sentence other than death as is the case herein. I consider 40 years imprisonment harsh and excessive in the circumstances of this case. The appellant is thus sentenced to serve 20 years imprisonment effective from 22nd March 2024 the date he was sentenced in the lower court.
45. Consequently therefore, and in view of the finding above, the appeal on Conviction is dismissed and sentence varied as above.