1. Warema Marwa Boke and Gatara Polycap Mwita, the appellants herein, were convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. The particulars were that on the 30th day of May 2023, at Kegonga area, Kuria East sub-county within Migori County, jointly with another person, while armed with pangas, robbed B.A.J. of a Sayona woofer, laptop bag, Ulephone mobile phone, 2 padlocks and 6 kg Power cooking gas, all valued at Kshs. 33,500/=, and immediately before and after the time of the said robbery, used violence against the said B.A.J.
3. The second appellant was also convicted of the offence of rape contrary to section 3(1) as read with section 3 (3) of the Sexual Offences Act No.3 of 2006.
4. The particulars were that on the 30th day of May 2023, at Kegonga area, Kuria East sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of B. A. without her consent.
5. Both appellants were sentenced to death for the offence of robbery, while the second appellant was sentenced to 15 years’ imprisonment for rape. The sentence in the third count, however, was ordered to remain in abeyance. They were aggrieved and filed this appeal. They raised the following grounds of appeal:
a) That the trial court erred in both law and fact by not complying with Article 50(2) (g) (h) of the Kenyan Constitution 2010.
b) That the trial court erred in both law and fact by not considering that the ingredients of the offence herein were not proved to the required standard in law and fact.
c) That the trial court erred in both law and fact by not considering that the ingredients of recognition/identification were not proved.
d) That the trial court erred in both law and fact by meting out a harsh and excessive sentence in the circumstances, despite the court's wide discretion in the mode of sentencing.
e) That the trial court erred in both law and fact by refusing to consider the appellants’ defence and mitigation.
6. The state, represented by learned counsel M/s Elizabeth Kogos, opposed the appeal, asserting that the prosecution met the necessary standard of proof.
7. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32
8. Article 50(2) (g) and (h) of the Constitution of Kenya provides as follows:
(2) Every accused person has the right to a fair trial, which
includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
9. Upon reviewing the record, I observe that on June 7, 2023, prior to taking the plea, the appellants were informed of their right to legal representation. They notified the court that they were prepared. Hence, they cannot argue that their constitutional rights to legal assistance were infringed.
10. The victim of robbery and rape was B.A. (PW2). Her evidence was that two robbers entered her house in the company of her friend, Rebecca. They were ordered to lie face down on the ground. One robber took Rebecca away, presumably to her house. When they returned, the other was raping her. The robber, in the company of Rebecca, shone a spotlight on them, and this was when he saw the person raping her, whom she identified as the second appellant. During cross-examination, she said she could remember his voice.
11. Her evidence was that when the duo entered the house, they turned off the sitting room lights, but the bedroom light remained on. She identified the first accused, who was wearing a Marvin and had a bald head.
12. The Court of Appeal in the case of Simeon Mbelle vs Republic [1982] IKAR 578, said:
In relation to the identification by voice, one would obviously be necessary to ensure:
(a) That it was the accused person’s voice;
(b) That the witness was familiar with it, and they recognized it, and
c) That the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it.
13. When the complainant reported the incident to the police, she did not claim she could identify the culprits by sight or voice. Had she made such a claim, she would have provided descriptions of the robbers. Without these descriptions, her assertion holds no evidentiary value. Additionally, her court testimony cannot be tested since it was not based on any prior identification or description. Given the poor lighting conditions, the court must ensure that the identification made is accurate and not mistaken. Lord Widgery C.J. emphasized this in R. vs Turnbull and Others [1976] 3 All ER 549, stating the importance of scrutinising eyewitness identification under such circumstances. He went on to say:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. 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? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
14. In order for the evidence of identification to have some probative value, the identification parade must comply with the laid-down procedure. The Court of Appeal in David Mwita Wanja & 2 others vs. Republic [2007] eKLR emphasized on the importance of a properly conducted identification parade and expressed itself as follows:
The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia vs. R [1986] KLR 422 where the court stated at page 424: -
It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect, the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.
15. The identification parades led by Chief Inspector Stephen Kang’ethe (PW3) lack evidential value because no prior descriptions of the suspects were provided to guide him. These parades were flawed because he used the same participants, as evidenced by the two identification forms. It would only make sense if the suspects were identical twins or if their descriptions indicated they looked nearly indistinguishable.
16. The complainant’s phone was recovered. She identified it in court. According to PC Paul Opemi (PW5), during an investigation into a different case, they visited Paulina Marwa's (PW4) home and retrieved a phone she claimed the second appellant had brought there for charging.
17. Paulina Marwa (PW4) was called as a witness. She testified to the same effect.
18. During the trial, both appellants denied any involvement in the offences.
19. After the analysis of the evidence on record, I find that there was no evidence adduced against the first appellant to warrant a conviction. The conviction is quashed and the sentence set aside. He is at liberty unless otherwise lawfully held.
20. The second appellant visited Paulina Marwa's home with the complainant’s phone on 31st May 2023 at 10 a.m., just hours after the robbery. This was a proper case, therefore, to invoke the doctrine of recent possession. In the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs. Republic Criminal Appeal No. 82 of 2004, the principles of the doctrine of recent possession were laid as follows:
... It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view, any discredited evidence on the same cannot suffice no matter from how many witnesses.
21. The proof of the person who assaulted the complainant was not established for the reasons I discussed earlier in the judgment. I annul the conviction of the second appellant for the rape charge and overturn the sentence.
22. The conviction of the second appellant for robbery was based on sound evidence.
23. Section 296 (2) of the Penal Code provides:
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
24. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
25. The appellant has not provided sufficient reasons to demonstrate that the learned trial magistrate acted upon some incorrect principle or overlooked some material factor.
26. The learned trial magistrate imposed the prescribed sentence for the offence. Therefore, the punishment cannot be described as harsh. I have no basis for interfering with the sentence.
27. The appeal by the second appellant is dismissed.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars were that on the 30th day of May 2023, at Kegonga area, Kuria East sub-county within Migori County, jointly with another person, while armed with pangas, robbed B.A.J. of a Sayona woofer, laptop bag, Ulephone mobile phone, 2 padlocks and 6 kg Power cooking gas, all valued at Kshs. 33,500/=, and immediately before and after the time of the said robbery, used violence against the said B.A.J.
3. The second appellant was also convicted of the offence of rape contrary to section 3(1) as read with section 3 (3) of the Sexual Offences Act No.3 of 2006.
4. The particulars were that on the 30th day of May 2023, at Kegonga area, Kuria East sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of B. A. without her consent.
5. Both appellants were sentenced to death for the offence of robbery, while the second appellant was sentenced to 15 years’ imprisonment for rape. The sentence in the third count, however, was ordered to remain in abeyance. They were aggrieved and filed this appeal. They raised the following grounds of appeal:
a) That the trial court erred in both law and fact by not complying with Article 50(2) (g) (h) of the Kenyan Constitution 2010.
b) That the trial court erred in both law and fact by not considering that the ingredients of the offence herein were not proved to the required standard in law and fact.
c) That the trial court erred in both law and fact by not considering that the ingredients of recognition/identification were not proved.
d) That the trial court erred in both law and fact by meting out a harsh and excessive sentence in the circumstances, despite the court's wide discretion in the mode of sentencing.
e) That the trial court erred in both law and fact by refusing to consider the appellants’ defence and mitigation.
6. The state, represented by learned counsel M/s Elizabeth Kogos, opposed the appeal, asserting that the prosecution met the necessary standard of proof.
7. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32
8. Article 50(2) (g) and (h) of the Constitution of Kenya provides as follows:
(2) Every accused person has the right to a fair trial, which
includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
9. Upon reviewing the record, I observe that on June 7, 2023, prior to taking the plea, the appellants were informed of their right to legal representation. They notified the court that they were prepared. Hence, they cannot argue that their constitutional rights to legal assistance were infringed.
10. The victim of robbery and rape was B.A. (PW2). Her evidence was that two robbers entered her house in the company of her friend, Rebecca. They were ordered to lie face down on the ground. One robber took Rebecca away, presumably to her house. When they returned, the other was raping her. The robber, in the company of Rebecca, shone a spotlight on them, and this was when he saw the person raping her, whom she identified as the second appellant. During cross-examination, she said she could remember his voice.
11. Her evidence was that when the duo entered the house, they turned off the sitting room lights, but the bedroom light remained on. She identified the first accused, who was wearing a Marvin and had a bald head.
12. The Court of Appeal in the case of Simeon Mbelle vs Republic [1982] IKAR 578, said:
In relation to the identification by voice, one would obviously be necessary to ensure:
(a) That it was the accused person’s voice;
(b) That the witness was familiar with it, and they recognized it, and
c) That the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it.
13. When the complainant reported the incident to the police, she did not claim she could identify the culprits by sight or voice. Had she made such a claim, she would have provided descriptions of the robbers. Without these descriptions, her assertion holds no evidentiary value. Additionally, her court testimony cannot be tested since it was not based on any prior identification or description. Given the poor lighting conditions, the court must ensure that the identification made is accurate and not mistaken. Lord Widgery C.J. emphasized this in R. vs Turnbull and Others [1976] 3 All ER 549, stating the importance of scrutinising eyewitness identification under such circumstances. He went on to say:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. 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? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
14. In order for the evidence of identification to have some probative value, the identification parade must comply with the laid-down procedure. The Court of Appeal in David Mwita Wanja & 2 others vs. Republic [2007] eKLR emphasized on the importance of a properly conducted identification parade and expressed itself as follows:
The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia vs. R [1986] KLR 422 where the court stated at page 424: -
It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect, the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.
15. The identification parades led by Chief Inspector Stephen Kang’ethe (PW3) lack evidential value because no prior descriptions of the suspects were provided to guide him. These parades were flawed because he used the same participants, as evidenced by the two identification forms. It would only make sense if the suspects were identical twins or if their descriptions indicated they looked nearly indistinguishable.
16. The complainant’s phone was recovered. She identified it in court. According to PC Paul Opemi (PW5), during an investigation into a different case, they visited Paulina Marwa's (PW4) home and retrieved a phone she claimed the second appellant had brought there for charging.
17. Paulina Marwa (PW4) was called as a witness. She testified to the same effect.
18. During the trial, both appellants denied any involvement in the offences.
19. After the analysis of the evidence on record, I find that there was no evidence adduced against the first appellant to warrant a conviction. The conviction is quashed and the sentence set aside. He is at liberty unless otherwise lawfully held.
20. The second appellant visited Paulina Marwa's home with the complainant’s phone on 31st May 2023 at 10 a.m., just hours after the robbery. This was a proper case, therefore, to invoke the doctrine of recent possession. In the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs. Republic Criminal Appeal No. 82 of 2004, the principles of the doctrine of recent possession were laid as follows:
... It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view, any discredited evidence on the same cannot suffice no matter from how many witnesses.
21. The proof of the person who assaulted the complainant was not established for the reasons I discussed earlier in the judgment. I annul the conviction of the second appellant for the rape charge and overturn the sentence.
22. The conviction of the second appellant for robbery was based on sound evidence.
23. Section 296 (2) of the Penal Code provides:
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
24. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
25. The appellant has not provided sufficient reasons to demonstrate that the learned trial magistrate acted upon some incorrect principle or overlooked some material factor.
26. The learned trial magistrate imposed the prescribed sentence for the offence. Therefore, the punishment cannot be described as harsh. I have no basis for interfering with the sentence.
27. The appeal by the second appellant is dismissed.
Delivered and signed at Migori, this 23rd day of February 2026