1. The Appellant appeals against the conviction and sentence by Hon. P. M. Maina (CM) on 20th April 2023 in Muranga Criminal Case No. 1401 of 2017, Republic vs Simon Kamau Wairugi& 8 other.He respectfully submits that the conviction was unsafe and ought to be quashed because of the following amended grounds of appeal:
a) The conviction was based on unreliable visual identification.
b) The trial court failed to properly warn itself of the dangers of reliance on a single identifying witness.
c) The prosecution failed to prove the case beyond reasonable doubt.
d) The Appellant's defence was not properly evaluated.
e) The sentence was harsh, excessive and unconstitutional.
2. He places reliance in the case of Okeno vs Republic held that,
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. "
3. The Appellant prays that this Honourable Court:
a) Allows the appeal
b) Quashes the conviction
c) Sets aside the sentence
d) Orders that the Appellant be set at liberty unless otherwise lawfully
4. The Court has consistently held that where a conviction rests on identification evidence or a single witness, the appellate court must carefully examine the evidence to ensure that no miscarriage of justice occurred. The Courts have repeatedly warned of the danger of convicting on visual identification without careful scrutiny.
5. It is trite law that where the only evidence against an Accused Person is evidence of identification or recognition a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error or mistake before it can safely make it the basis of a conviction [See, Otieno Wanunga Vs. Republic [1989] eKLRJ.
6. The Court of Appeal for Eastern Africa in the case of Abdullah Bin Wendo Vs. Republic [20EACA]166, stated that: -
"Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is know that the conditions favouring correct identification were difficult. In such circumstances, what is needed is other evidence whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness; can safely be accepted as free from the possibility of error."
7. And, in Roria Vs. Republic [1967] EA 583, the Court of Appeal 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."
8. He submits that the it is important that evidence of visual identification in
criminal cases ought to be examined carefully to minimize the danger of bringing about miscarriages of justice especially where a case depends wholly or to a great extent on the correctness of one or more identifications of the Accused, the court is required to warn itself of the special need for caution before convicting the Accused [See, the Cleophas Otieno case [supra].
9. He also relies on the case of R v Turnbull and Others (1976] 3 ALLE 2549 stated that:
"Secondly the Judge should direct the jury to examine closely the circumstances in which the identification by such witnesses came to be made. How long did the witness have the Accused under observation" At what distance" In what light" Was the observation impeded in any way, as for example by passing traffic or a press of people" Had the witness ever seen the Accused before" How often" If only occasionally, had he any special reason for remembering the accused".
10. He submits that the trial court wrongly convicted and sentenced the appellant but failed to find that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is know that the conditions favouring correct identification were difficult.
11. As held in the above cited case law in such circumstances, what is needed is other evidence whether it be circumstantial or direct pointing to guilt, from which the trial court could reasonably conclude that the evidence of identification, although based on the testimony of a single witness; can safely be accepted as free from the possibility of error.
12. In the instant matter, PW 1 is a single identifying witness. The conditions for identification were difficult. PW1 told the trial court that incidence occurred on 30/04/2017 at 2.30 am. See also page 53 line 19 where PW2 told the court that the incidence occurred on 29/042017 at around 2.00 am.
13. PW2 told the trial court that there was light but not very bright.PW10 the investigation officer told the trial court that the attack occurred on 30/04/2017 at midnight. The electricity was disconnected and it was raining. The attackers had dismantled the electricity.
14. He submits that it is clear that the circumstances for identification were difficult. PW2 being a single identifying witness and the circumstances for identification being difficult, the trial court was bound to test the evidence of identification with care to eliminate any possibility of error. The appellant submits that the trial court did not test PW2s evidence on identification with care and that the learned trial magistrate did not warn himself on the dangers of relying on PW2s evidence who is a single identifying witness for that matter.
15. PW2 was not in a position to describe the people that attacked her because the circumstances of identification was difficult and because of fear coupled with the fact that she was injured. In the case of James Odhiambo Okete v Republic [2011] eKLR where the Court held that visual identification of the accused by a child witness at night was unsafe and unreliable where proper caution was not exercised and conditions (darkness, shock) made accurate identification dubious.
16. Further, the appellant submits that PW2 was not consistent on her evidence identification. For instance, PW1 told the trial court that it was accused 7 who came with her sweater at the hospital while bandaging his wound. However, PW10, told the trial court that it was Accused 1 who came to court while bandaged with PW2s sweater.
17. PW2 told the trial court that the lights were on. However, PW10 the investigation officer, told the trial court that the electricity was disconnected.
18. Faced with the same matter before you, the Court of Appeal in Maitanyi Republic (1986] KLR 198, this Court stated as follows:
"Although it is trite law that a fact may be proved by the testimony of a
single witness, this does not lessen the need for testing with the greatest care the
evidence of a single witness respecting identification, especially when it is
known that the conditions favouring a correct identification were difficult.
When testing the evidence of a single witness a careful inquiry ought to be
made into the nature of the light available conditions and whether the witness
was able to make a true impression and description.
The court must warn itself of the danger of relying on the evidence of a single
identifying witness. It is not enough for the court to warn itself after making the
decision, it must do so when the evidence is being considered and before decision
is made.
Failure to undertake an inquiry of careful testing is an error of law and such
evidence cannot safely support a conviction."
19. In Stephen Nungu Maina v Republic [2013] Eklr the Court of Appeal overturned conviction where a single witness claimed to have seen the appellant for a short time under stressful conditions without prior description, noting risk of mistaken identity.
20. The complainant in the present matter did not report the case by herself. The person who made the report did not testify. PW2 being the complainant, did not give any description of the people who attacked her to the police while reporting.
21. PW2 told the trial court that she did not give the descriptions of the people that attacked her. May this honorable court also find that PW2 did not tell the trial court whether she could identify them in the event she sees them.
22. The Court of Appeal in Njihia v Republic held that: If properly conducted, the resulting evidence is of great value. But if the parade is badly conducted the complainant will hardly be able to give reliable evidence of identification. The same principle was reiterated in Kemboi v Republic, where the Court emphasized that an improperly conducted parade undermines the reliability of identification evidence.
23. In the present matter we submit that the identification parade was not properly conducted as it faulted the police force standing orders that governs how the identification parades ought to be conducted. For instance, as stated above, the complainant did not give any description of the alleged attackers to the police that could aid the police in arresting the suspects.
24. PW2 while under cross examination by the appellant told the trial court that she did not give the descriptions of the appellant to the police.PW10 told the trial court that PW2 said that she could identify her assailants but did not give descriptions.
25. He submits that the appellant was arrested out of suspicion and suspicion alone without prove cannot make a charge stand. No description of the alleged robbers was given to the police to aid in the arrest of the alleged robbers.
26. PW10s assertion that PW2 said that she was able to identify her assailants was not corroborated by PW2. During cross examination PW2 did not mention whether she saw the appellant among the people that attacked her. It was not possible for PW2 to identify her assailants yet she did not give their descriptions while recording her statement and while reporting this matter to the police.
27. The Court of Appeal in Samuel Kilonzo Musau v Republic" stated: -"The purpose of an identification parade, as explained in Kinyanjui & 2 Others v Republic (1989) KLR 60,
"Is to give an opportunity to a witness under controlled and fair conditions topick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion? It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure
that a witness's attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification."
28. He submits that the manner in which the identification parade was conducted was unfair.
29. In the case of R v Mwango s/o Manaa as follows:
“a. The accused has the right to have an advocate or friend present at the parade; b. The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness; c. Witnesses should be shown the parade separately and should not discuss the parade among themselves; d. The number of suspects I the parade should be eight (or 10 in the case of two suspects); e. All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race: f. Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; and g. As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.”
30. The appellant participated in the parade without legal representation simply because he was not in a position to hire one. The officer conducting the identification parade was therefore legally enjoined to ensure that he conducted the identification parade in a fair manner.
31. The appellant in his defence told the trial court that the Identification parade was unfairly conducted. PW2 while under cross examination by the appellant told the trial court that all types were on the parade.
32. PW2 told the trial court that the parade was made up people of different sizes and members. The appellant in his defence told the trial court the identification was made up of people from a construction site with different dressing and that
33. PW2 did not give descriptions that could lead the police to arrest the appellant. The same identification parade members were used in three different parades to identify accused 6, 7, 8 and 9. This evidence was tendered by PW4 who is a parade officer.
34. Pw4 also told the trial court that the accused persons were not of similar height nor did they look alike. The identification parade was conducted the identification parade was conducted at 11/4/2017 while the alleged offence is said to have been committed on 30/04/2017.The appellant was therefore arrested and identified before the offence was committed.
35. Under Section 296[2] of the Penal Code the prosecution was required to prove that,
I. The offender must be armed with a dangerous weapon.
II. He must be in the company of others.
III. If at all immediately before or after the time of the said robbery, his wounds beats, strikes or uses of actual violence or threatening to use violence to any person.
36. The appellant submits that though prosecution proved the ingredients of robbery with violence, but submits that no evidence either direct or circumstantial that linked him to the instant offence. He submits that under Section 107 of the Evidence Act (Cap 80 Laws of Kenya), the burden of proof lies upon the prosecution to prove its case beyond reasonable doubt. The principle was emphasized by the Court of Appeal in Sawe v Republic where the court held that suspicion, however strong, cannot form the basis of a conviction in criminal cases.
37. The Appellant was not found in possession of the said property. No exhibit allegedly stolen from the complainant was recovered from the Appellant.
38. The doctrine of recent possession can only apply where the prosecution proves:
a) The property was stolen.
b) The property was found in possession of the accused.
c) The possession was recent.
d) The accused failed to give a reasonable explanation.
39. This principle was clearly stated by the Court of Appeal in Arum v Republic where the court held that before relying on the doctrine of recent possession, the prosecution must prove that the accused was found with the stolen property. Similarly, in Malingi v Republic, the Court of Appeal held that the doctrine of recent possession only arises where possession of stolen property is positively proved. In the present case, no property belonging to the complainant was recovered from the Appellant. Therefore, the doctrine of recent possession could not lawfully be invoked.
40. Under Section 169(1) of the Criminal Procedure Code (Cap 75 Laws of Kenya), a judgment must contain: The points for determination, The decision thereon, the reasons for the decision he submits that the failure to evaluate the defence amounts to a violation of this statutory requirement.
41. Further, Article 50(2) of the Constitution of Kenya, 2010 guarantees the right to a fair trial, including the right of an accused person to have their defence fully considered.
42. He argues that his defence was not analyzed and considered and in particular the issues he raised that PW2 never gave any description to the police linking him with the offence. His concerns about the parade were not considered.
43. He also raised the issue that the report was made by Joyce Njoki who was not called to testify. He is concerned since in his judgment, the learned trial magistrate did not weigh his defence evidence against that of the prosecution which prejudiced him and his right to a fair trial as enshrined by the constitution on article 25 [c] and 50 [2] of the constitution.
44. The Court of Appeal in Okeno v Republic held that:
"The first appellate court must reconsider the evidence, evaluate it itself and drawn its own conclusions." This authority underscores the duty of courts to analyze the entire evidence including the defence.
45. The Court of Appeal in Kiilu & Another v Republic restated that a trial court must consider the defence and weigh it against the prosecution evidence before arriving at a conviction. The burden remains on the prosecution to prove the case beyond reasonable doubt. The defence only needs to raise a reasonable doubt.
46. He prayers that may this court find that the trial court's omission therefore prejudiced the him and led to an unjust conviction by failing to evaluate my defence and that the trial court could not properly determine whether the prosecution discharged its burden of proof.
47. The appellant was charged with the offence of Robbery with violence contrary to section 296[2] of the Penal Code. The punishment for this offence is a minimum mandatory Death Sentence. He submits that the learned trial magistrate wrongly meted this minimum mandatory sentence on the appellant. Section 296(2) of the Penal Code prescribes a mandatory minimum death sentence for robbery with violence.
48. The Supreme Court in Francis Karioko Muruatetu & Another v Republic declared the mandatory nature of the death sentence unconstitutional on grounds that it: Deprives courts of judicial discretion, Violates the right to fair trial under Article 50(2) of the Constitution 2010, undermines dignity under Article 28 of the Constitution. The Court held that sentencing is a judicial function that must allow consideration of mitigating circumstances. Although subsequent directions clarified the application of Muruatetu, the core constitutional principle remains. A mandatory sentence that removes judicial discretion is unconstitutional. The Court of Appeal in William Okungu Kittiny v Republic extended the reasoning in Muruatetu to robbery with violence under Section 296(2) of the Penal Code.
49. The mandatory imposition of death violates Article 25(c) of the Constitution 2010 which provides for the right to a fair trial (non-derogable), Article 27 of the Constitution which advocates for equality before the law regardless of one’s position, status, color or race among others,
50. Article 50(2)(q) of the constitution which calls for the accused persons right to benefit from the least severe sentence and the least severe sentence in this matter is the one that reflects the circumstances of the offence.
51. He invites the court to find that Sentencing must meet constitutional standards of proportionality. The mandatory minimum death sentence meted on the appellant sentence violates constitutional safeguards as it was meted as a blanket sentence equating all robbery with violence cases irrespective of factual distinctions thus fails the proportionality test.
52. In Geoffrey Mutisya Maingi v Republic (Criminal Appeal 183 of 2023) (2024] KEHC 1573 (KLR) vacated the death sentence imposed and resentenced the appellant to 20 years' imprisonment. This reflects judicial reluctance to maintain mandatory capital punishment when mitigating factors support significant terms. He invites this court to set aside the death sentence imposed on the appellant and mete a lenient definite sentence reflecting the time the appellant has spent in custody by the appellant and the mitigating factors in the event this appeal fails on conviction.
The Respondent's Submissions;
53. In opposing the appeal, it submits that Section 295 of the Penal code provides that:
“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.”
54. Section 296(2) of the penal code provides that:
“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.”
55. From the above provision of the law, the necessary ingredients of the offence that must be proved are:
a. That the offender committed robbery-stole anything
b. At the time of the offence he was in the company of another; or; he was armed with a dangerous or offensive weapon; or; he used actual violence on the victim
c. Proper Identification of the offenders.
56. PW2 was very clear in her evidence. She narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries.
57. Further PW2 gave in detail what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant herein (Simon Kamau Wairugi).
58. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room.
59. Her evidence was corroborated by PW1, their neighbour on the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene.
60. The identification by PW2 met all the conditions set by the Court in Obwana &others vs Uganda (2009)2 EA being:
a) The length of time the witness took to identify the accused
b) The distance from which the witness identified the accused
c) The source of light that was available at the material time
61. The court, in convicting, considered the strength of the identification evidence of PW2, cautioning itself in light of precedents that she was a single identifying witness. The evidence was so clear that no doubt whatsoever was cast as to the identity of the perpetrators.
62. PW2 was very categorical on identifying the attackers during the incident. She said there were lights on, the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack. That's how she was able to pick them all out in an identification parade. The identification parades were proper and in accordance with the Forces standing orders.
63. Although the burden on the prosecution is to prove either of them, it submits that this case met all three. The attackers were more than one person, they were armed with dangerous weapons and they did inflict actual violence on the complainant and worse, killed her husband and mother-in law.
64. PW5 provided medical evidence corroborating the injuries suffered by the complainant, PW2. This is evident from the testimony of PW1, PW2 & PW5coupled with that of all the other prosecution witnesses.
65. All elements of the offence of robbery with violence were proved.
66. The Evidence Act, Section 143 provides that:
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."
67. In this case, all necessary witnesses were called and the necessary ingredients of the offence were proved beyond reasonable doubt.
68. The appellants, in their defences tried to raise an alibi. The Court analysed this at length at pages J10 to J21 in the judgement at page J42-J43.
69. From the judgement, it is clear that the court indeed weighed the defences raised and found that the same were mere denials and raised as an afterthought and that they did not cast doubt on the prosecution case or even discredit the complainant's evidence on their identification. The court found no the defences to be a sham.
Whether the charging of the appellants herein amounted to double jeopardy
70. In their submissions, the 3rd and 7th appellants argue that being charged in the matter herein amounted to double jeopardy.
71. The appellants were charged with a separate the offence of murder in Hc.Cr.C/22/2017 The Republic Vs Simon Kamau Wairugi and Samuel Nyoike Ndungu Alias Lala and 7 Others. The matter is still ongoing and has a hearing date of 07/07/2026 before Murang'a High Court No.2. The matter is therefore subjudice therefore the issue of double jeopardy cannot arise by virtue of the said matter. In any event, the offences are separate, the victims of the offences are different.
72.In urging the court not to disturb the sentence, we submit that sentencing is a matter of judicial discretion, within the confines of the law. The court in Pamella Akoth Owuor v Republic [2008] Eklr stated:
“A Court's discretion in sentencing is regulated by law. And where this discretion is judiciously and responsibly exercised within the scope defined by law,the correct stand in law, in my opinion, is that the sentence as imposed is right; and consequently, it is the just deserts of the accused that he or she should serve that sentence.”
72. In the particular circumstances of this case, the court indeed exercised its discretion responsibly. From page 157 of the record, it is very clear that the court considered all relevant factors, including the fact that the principles set out in Muruatetu primarily applies to murder cases under sections 203 and 204 of the Penal Code. Further and more crucially, the court took into account the principles of proportionality, accountability and transparency. The court therefore gave sentences that were both legal and commensurate to the offences committed. We submit that no ground has been raised to challenge the sentencing discretion of the trial court and disturb the sentences imposed.
Analysis and determination;
73. Having looked at the Appellant’s Amended Grounds of Appeal, the written Submissions and those of the Respondent, the issues that arise for determination were as follows:-
a. Whether or not the prosecution proved its case beyond reasonable doubt and
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
74. Having set out the parties cases I will proceed to evaluate and scrutinize the evidence and proceedings on record and reach my 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.
75. The offence of robbery with violence 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.”
76. In Moneni Ngumbao Mangi v. 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”.
77. 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
[...truncated]
a) The conviction was based on unreliable visual identification.
b) The trial court failed to properly warn itself of the dangers of reliance on a single identifying witness.
c) The prosecution failed to prove the case beyond reasonable doubt.
d) The Appellant's defence was not properly evaluated.
e) The sentence was harsh, excessive and unconstitutional.
2. He places reliance in the case of Okeno vs Republic held that,
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. "
3. The Appellant prays that this Honourable Court:
a) Allows the appeal
b) Quashes the conviction
c) Sets aside the sentence
d) Orders that the Appellant be set at liberty unless otherwise lawfully
4. The Court has consistently held that where a conviction rests on identification evidence or a single witness, the appellate court must carefully examine the evidence to ensure that no miscarriage of justice occurred. The Courts have repeatedly warned of the danger of convicting on visual identification without careful scrutiny.
5. It is trite law that where the only evidence against an Accused Person is evidence of identification or recognition a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error or mistake before it can safely make it the basis of a conviction [See, Otieno Wanunga Vs. Republic [1989] eKLRJ.
6. The Court of Appeal for Eastern Africa in the case of Abdullah Bin Wendo Vs. Republic [20EACA]166, stated that: -
"Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is know that the conditions favouring correct identification were difficult. In such circumstances, what is needed is other evidence whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness; can safely be accepted as free from the possibility of error."
7. And, in Roria Vs. Republic [1967] EA 583, the Court of Appeal 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."
8. He submits that the it is important that evidence of visual identification in
criminal cases ought to be examined carefully to minimize the danger of bringing about miscarriages of justice especially where a case depends wholly or to a great extent on the correctness of one or more identifications of the Accused, the court is required to warn itself of the special need for caution before convicting the Accused [See, the Cleophas Otieno case [supra].
9. He also relies on the case of R v Turnbull and Others (1976] 3 ALLE 2549 stated that:
"Secondly the Judge should direct the jury to examine closely the circumstances in which the identification by such witnesses came to be made. How long did the witness have the Accused under observation" At what distance" In what light" Was the observation impeded in any way, as for example by passing traffic or a press of people" Had the witness ever seen the Accused before" How often" If only occasionally, had he any special reason for remembering the accused".
10. He submits that the trial court wrongly convicted and sentenced the appellant but failed to find that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is know that the conditions favouring correct identification were difficult.
11. As held in the above cited case law in such circumstances, what is needed is other evidence whether it be circumstantial or direct pointing to guilt, from which the trial court could reasonably conclude that the evidence of identification, although based on the testimony of a single witness; can safely be accepted as free from the possibility of error.
12. In the instant matter, PW 1 is a single identifying witness. The conditions for identification were difficult. PW1 told the trial court that incidence occurred on 30/04/2017 at 2.30 am. See also page 53 line 19 where PW2 told the court that the incidence occurred on 29/042017 at around 2.00 am.
13. PW2 told the trial court that there was light but not very bright.PW10 the investigation officer told the trial court that the attack occurred on 30/04/2017 at midnight. The electricity was disconnected and it was raining. The attackers had dismantled the electricity.
14. He submits that it is clear that the circumstances for identification were difficult. PW2 being a single identifying witness and the circumstances for identification being difficult, the trial court was bound to test the evidence of identification with care to eliminate any possibility of error. The appellant submits that the trial court did not test PW2s evidence on identification with care and that the learned trial magistrate did not warn himself on the dangers of relying on PW2s evidence who is a single identifying witness for that matter.
15. PW2 was not in a position to describe the people that attacked her because the circumstances of identification was difficult and because of fear coupled with the fact that she was injured. In the case of James Odhiambo Okete v Republic [2011] eKLR where the Court held that visual identification of the accused by a child witness at night was unsafe and unreliable where proper caution was not exercised and conditions (darkness, shock) made accurate identification dubious.
16. Further, the appellant submits that PW2 was not consistent on her evidence identification. For instance, PW1 told the trial court that it was accused 7 who came with her sweater at the hospital while bandaging his wound. However, PW10, told the trial court that it was Accused 1 who came to court while bandaged with PW2s sweater.
17. PW2 told the trial court that the lights were on. However, PW10 the investigation officer, told the trial court that the electricity was disconnected.
18. Faced with the same matter before you, the Court of Appeal in Maitanyi Republic (1986] KLR 198, this Court stated as follows:
"Although it is trite law that a fact may be proved by the testimony of a
single witness, this does not lessen the need for testing with the greatest care the
evidence of a single witness respecting identification, especially when it is
known that the conditions favouring a correct identification were difficult.
When testing the evidence of a single witness a careful inquiry ought to be
made into the nature of the light available conditions and whether the witness
was able to make a true impression and description.
The court must warn itself of the danger of relying on the evidence of a single
identifying witness. It is not enough for the court to warn itself after making the
decision, it must do so when the evidence is being considered and before decision
is made.
Failure to undertake an inquiry of careful testing is an error of law and such
evidence cannot safely support a conviction."
19. In Stephen Nungu Maina v Republic [2013] Eklr the Court of Appeal overturned conviction where a single witness claimed to have seen the appellant for a short time under stressful conditions without prior description, noting risk of mistaken identity.
20. The complainant in the present matter did not report the case by herself. The person who made the report did not testify. PW2 being the complainant, did not give any description of the people who attacked her to the police while reporting.
21. PW2 told the trial court that she did not give the descriptions of the people that attacked her. May this honorable court also find that PW2 did not tell the trial court whether she could identify them in the event she sees them.
22. The Court of Appeal in Njihia v Republic held that: If properly conducted, the resulting evidence is of great value. But if the parade is badly conducted the complainant will hardly be able to give reliable evidence of identification. The same principle was reiterated in Kemboi v Republic, where the Court emphasized that an improperly conducted parade undermines the reliability of identification evidence.
23. In the present matter we submit that the identification parade was not properly conducted as it faulted the police force standing orders that governs how the identification parades ought to be conducted. For instance, as stated above, the complainant did not give any description of the alleged attackers to the police that could aid the police in arresting the suspects.
24. PW2 while under cross examination by the appellant told the trial court that she did not give the descriptions of the appellant to the police.PW10 told the trial court that PW2 said that she could identify her assailants but did not give descriptions.
25. He submits that the appellant was arrested out of suspicion and suspicion alone without prove cannot make a charge stand. No description of the alleged robbers was given to the police to aid in the arrest of the alleged robbers.
26. PW10s assertion that PW2 said that she was able to identify her assailants was not corroborated by PW2. During cross examination PW2 did not mention whether she saw the appellant among the people that attacked her. It was not possible for PW2 to identify her assailants yet she did not give their descriptions while recording her statement and while reporting this matter to the police.
27. The Court of Appeal in Samuel Kilonzo Musau v Republic" stated: -"The purpose of an identification parade, as explained in Kinyanjui & 2 Others v Republic (1989) KLR 60,
"Is to give an opportunity to a witness under controlled and fair conditions topick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion? It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure
that a witness's attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification."
28. He submits that the manner in which the identification parade was conducted was unfair.
29. In the case of R v Mwango s/o Manaa as follows:
“a. The accused has the right to have an advocate or friend present at the parade; b. The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness; c. Witnesses should be shown the parade separately and should not discuss the parade among themselves; d. The number of suspects I the parade should be eight (or 10 in the case of two suspects); e. All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race: f. Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; and g. As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.”
30. The appellant participated in the parade without legal representation simply because he was not in a position to hire one. The officer conducting the identification parade was therefore legally enjoined to ensure that he conducted the identification parade in a fair manner.
31. The appellant in his defence told the trial court that the Identification parade was unfairly conducted. PW2 while under cross examination by the appellant told the trial court that all types were on the parade.
32. PW2 told the trial court that the parade was made up people of different sizes and members. The appellant in his defence told the trial court the identification was made up of people from a construction site with different dressing and that
33. PW2 did not give descriptions that could lead the police to arrest the appellant. The same identification parade members were used in three different parades to identify accused 6, 7, 8 and 9. This evidence was tendered by PW4 who is a parade officer.
34. Pw4 also told the trial court that the accused persons were not of similar height nor did they look alike. The identification parade was conducted the identification parade was conducted at 11/4/2017 while the alleged offence is said to have been committed on 30/04/2017.The appellant was therefore arrested and identified before the offence was committed.
35. Under Section 296[2] of the Penal Code the prosecution was required to prove that,
I. The offender must be armed with a dangerous weapon.
II. He must be in the company of others.
III. If at all immediately before or after the time of the said robbery, his wounds beats, strikes or uses of actual violence or threatening to use violence to any person.
36. The appellant submits that though prosecution proved the ingredients of robbery with violence, but submits that no evidence either direct or circumstantial that linked him to the instant offence. He submits that under Section 107 of the Evidence Act (Cap 80 Laws of Kenya), the burden of proof lies upon the prosecution to prove its case beyond reasonable doubt. The principle was emphasized by the Court of Appeal in Sawe v Republic where the court held that suspicion, however strong, cannot form the basis of a conviction in criminal cases.
37. The Appellant was not found in possession of the said property. No exhibit allegedly stolen from the complainant was recovered from the Appellant.
38. The doctrine of recent possession can only apply where the prosecution proves:
a) The property was stolen.
b) The property was found in possession of the accused.
c) The possession was recent.
d) The accused failed to give a reasonable explanation.
39. This principle was clearly stated by the Court of Appeal in Arum v Republic where the court held that before relying on the doctrine of recent possession, the prosecution must prove that the accused was found with the stolen property. Similarly, in Malingi v Republic, the Court of Appeal held that the doctrine of recent possession only arises where possession of stolen property is positively proved. In the present case, no property belonging to the complainant was recovered from the Appellant. Therefore, the doctrine of recent possession could not lawfully be invoked.
40. Under Section 169(1) of the Criminal Procedure Code (Cap 75 Laws of Kenya), a judgment must contain: The points for determination, The decision thereon, the reasons for the decision he submits that the failure to evaluate the defence amounts to a violation of this statutory requirement.
41. Further, Article 50(2) of the Constitution of Kenya, 2010 guarantees the right to a fair trial, including the right of an accused person to have their defence fully considered.
42. He argues that his defence was not analyzed and considered and in particular the issues he raised that PW2 never gave any description to the police linking him with the offence. His concerns about the parade were not considered.
43. He also raised the issue that the report was made by Joyce Njoki who was not called to testify. He is concerned since in his judgment, the learned trial magistrate did not weigh his defence evidence against that of the prosecution which prejudiced him and his right to a fair trial as enshrined by the constitution on article 25 [c] and 50 [2] of the constitution.
44. The Court of Appeal in Okeno v Republic held that:
"The first appellate court must reconsider the evidence, evaluate it itself and drawn its own conclusions." This authority underscores the duty of courts to analyze the entire evidence including the defence.
45. The Court of Appeal in Kiilu & Another v Republic restated that a trial court must consider the defence and weigh it against the prosecution evidence before arriving at a conviction. The burden remains on the prosecution to prove the case beyond reasonable doubt. The defence only needs to raise a reasonable doubt.
46. He prayers that may this court find that the trial court's omission therefore prejudiced the him and led to an unjust conviction by failing to evaluate my defence and that the trial court could not properly determine whether the prosecution discharged its burden of proof.
47. The appellant was charged with the offence of Robbery with violence contrary to section 296[2] of the Penal Code. The punishment for this offence is a minimum mandatory Death Sentence. He submits that the learned trial magistrate wrongly meted this minimum mandatory sentence on the appellant. Section 296(2) of the Penal Code prescribes a mandatory minimum death sentence for robbery with violence.
48. The Supreme Court in Francis Karioko Muruatetu & Another v Republic declared the mandatory nature of the death sentence unconstitutional on grounds that it: Deprives courts of judicial discretion, Violates the right to fair trial under Article 50(2) of the Constitution 2010, undermines dignity under Article 28 of the Constitution. The Court held that sentencing is a judicial function that must allow consideration of mitigating circumstances. Although subsequent directions clarified the application of Muruatetu, the core constitutional principle remains. A mandatory sentence that removes judicial discretion is unconstitutional. The Court of Appeal in William Okungu Kittiny v Republic extended the reasoning in Muruatetu to robbery with violence under Section 296(2) of the Penal Code.
49. The mandatory imposition of death violates Article 25(c) of the Constitution 2010 which provides for the right to a fair trial (non-derogable), Article 27 of the Constitution which advocates for equality before the law regardless of one’s position, status, color or race among others,
50. Article 50(2)(q) of the constitution which calls for the accused persons right to benefit from the least severe sentence and the least severe sentence in this matter is the one that reflects the circumstances of the offence.
51. He invites the court to find that Sentencing must meet constitutional standards of proportionality. The mandatory minimum death sentence meted on the appellant sentence violates constitutional safeguards as it was meted as a blanket sentence equating all robbery with violence cases irrespective of factual distinctions thus fails the proportionality test.
52. In Geoffrey Mutisya Maingi v Republic (Criminal Appeal 183 of 2023) (2024] KEHC 1573 (KLR) vacated the death sentence imposed and resentenced the appellant to 20 years' imprisonment. This reflects judicial reluctance to maintain mandatory capital punishment when mitigating factors support significant terms. He invites this court to set aside the death sentence imposed on the appellant and mete a lenient definite sentence reflecting the time the appellant has spent in custody by the appellant and the mitigating factors in the event this appeal fails on conviction.
The Respondent's Submissions;
53. In opposing the appeal, it submits that Section 295 of the Penal code provides that:
“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.”
54. Section 296(2) of the penal code provides that:
“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.”
55. From the above provision of the law, the necessary ingredients of the offence that must be proved are:
a. That the offender committed robbery-stole anything
b. At the time of the offence he was in the company of another; or; he was armed with a dangerous or offensive weapon; or; he used actual violence on the victim
c. Proper Identification of the offenders.
56. PW2 was very clear in her evidence. She narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries.
57. Further PW2 gave in detail what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant herein (Simon Kamau Wairugi).
58. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room.
59. Her evidence was corroborated by PW1, their neighbour on the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene.
60. The identification by PW2 met all the conditions set by the Court in Obwana &others vs Uganda (2009)2 EA being:
a) The length of time the witness took to identify the accused
b) The distance from which the witness identified the accused
c) The source of light that was available at the material time
61. The court, in convicting, considered the strength of the identification evidence of PW2, cautioning itself in light of precedents that she was a single identifying witness. The evidence was so clear that no doubt whatsoever was cast as to the identity of the perpetrators.
62. PW2 was very categorical on identifying the attackers during the incident. She said there were lights on, the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack. That's how she was able to pick them all out in an identification parade. The identification parades were proper and in accordance with the Forces standing orders.
63. Although the burden on the prosecution is to prove either of them, it submits that this case met all three. The attackers were more than one person, they were armed with dangerous weapons and they did inflict actual violence on the complainant and worse, killed her husband and mother-in law.
64. PW5 provided medical evidence corroborating the injuries suffered by the complainant, PW2. This is evident from the testimony of PW1, PW2 & PW5coupled with that of all the other prosecution witnesses.
65. All elements of the offence of robbery with violence were proved.
66. The Evidence Act, Section 143 provides that:
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."
67. In this case, all necessary witnesses were called and the necessary ingredients of the offence were proved beyond reasonable doubt.
68. The appellants, in their defences tried to raise an alibi. The Court analysed this at length at pages J10 to J21 in the judgement at page J42-J43.
69. From the judgement, it is clear that the court indeed weighed the defences raised and found that the same were mere denials and raised as an afterthought and that they did not cast doubt on the prosecution case or even discredit the complainant's evidence on their identification. The court found no the defences to be a sham.
Whether the charging of the appellants herein amounted to double jeopardy
70. In their submissions, the 3rd and 7th appellants argue that being charged in the matter herein amounted to double jeopardy.
71. The appellants were charged with a separate the offence of murder in Hc.Cr.C/22/2017 The Republic Vs Simon Kamau Wairugi and Samuel Nyoike Ndungu Alias Lala and 7 Others. The matter is still ongoing and has a hearing date of 07/07/2026 before Murang'a High Court No.2. The matter is therefore subjudice therefore the issue of double jeopardy cannot arise by virtue of the said matter. In any event, the offences are separate, the victims of the offences are different.
72.In urging the court not to disturb the sentence, we submit that sentencing is a matter of judicial discretion, within the confines of the law. The court in Pamella Akoth Owuor v Republic [2008] Eklr stated:
“A Court's discretion in sentencing is regulated by law. And where this discretion is judiciously and responsibly exercised within the scope defined by law,the correct stand in law, in my opinion, is that the sentence as imposed is right; and consequently, it is the just deserts of the accused that he or she should serve that sentence.”
72. In the particular circumstances of this case, the court indeed exercised its discretion responsibly. From page 157 of the record, it is very clear that the court considered all relevant factors, including the fact that the principles set out in Muruatetu primarily applies to murder cases under sections 203 and 204 of the Penal Code. Further and more crucially, the court took into account the principles of proportionality, accountability and transparency. The court therefore gave sentences that were both legal and commensurate to the offences committed. We submit that no ground has been raised to challenge the sentencing discretion of the trial court and disturb the sentences imposed.
Analysis and determination;
73. Having looked at the Appellant’s Amended Grounds of Appeal, the written Submissions and those of the Respondent, the issues that arise for determination were as follows:-
a. Whether or not the prosecution proved its case beyond reasonable doubt and
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
74. Having set out the parties cases I will proceed to evaluate and scrutinize the evidence and proceedings on record and reach my 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.
75. The offence of robbery with violence 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.”
76. In Moneni Ngumbao Mangi v. 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”.
77. 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
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