The appellant was charged with three counts of robbery with violence but was convicted on the 1 st count only whose particulars were that on the 18 th day of June 2019 at Kiriri area in Mwihoko within Kiambu County jointly with others before court while armed with a mattock and a knife, robbed Eunice Magiri Wairimu of one 6 kgs k-gas cylinder worth Kshs 5,500/= and one mobile phone make TECNO SPARK 2 worth Kshs 10,000/= all valued at Kshs 15,500/= and immediately before or immediately after the time of such robbery threatened to use actual violence against the said Eunice Magiri Wairimu. He was tried, found guilty and sentenced to serve twenty years in prison.
The appellant has challenged the conviction and sentence pleading the following grounds;
1. THAT the Hon. trial court Magistrate erred in law and fact when she failed in not realizing that the circumstantial evidence adduced at the trial court did not place the accused person at the scene of the alleged crime.
2. THAT the Hon. trial court Magistrate erred in law and fact in failing to find that the ingredients forming the offence of robbery were not proved.
3. THAT the Hon. trial court Magistrate erred in law and fact by failing to find that the mode of arrest of the accused person was greatly unjustified by the evidence that was tendered against him by the prosecution.
4. THAT the Hon. trial court Magistrate erred in law and fact by failing to find that the key adversely mentioned witnesses were not called to testify and this left waging gaps and unexplained questions in the whole of the prosecution’s case whose doubts ought to have been resolved in favor of the accused person.
5. THAT the Hon. trial court Magistrate erred in law and fact by failing to comply with the express provisions of section 169 of Criminal Procedure Code in his appreciation of the evidence and analysis of the issues to be determined.
6. THAT the learned trial Magistrate erred in law and fact by failing to give regard to the appellant’s defence which exonerated him from any wrongful doing.
The appeal was ordered to be disposed of by way of written submissions. The appellant filed submissions dated 12 th March 2025. When the matter came for mention on 14 th July 2025, Miss Torosi for the respondent told the court that she had filed submissions on 10-06-2025 but I am unable to trace them either in the physical court file or the case tracking systems. All that the respondent filed in this matter was a notice of enhancement of sentence dated 14 th February 2025 which was filed on 14-02-2025.
This being a first appeal, I am required to re-evaluate and re-consider the evidence as recorded in the lower court and come to my own independent conclusion but in doing so, I must put into consideration the fact that I did not take the evidence first hand and had no opportunity to observe the demeanour of the witnesses. In doing so and for purposes of record, I will have to reproduce the testimony of the witnesses before I get into analysis of the same and my determination. The prosecution called two witnesses while the appellant gave a sworn statement in his defence and called no witness.
Prosecution’s case
Eunice Magiri Wairimu who was the complainant told the court that on 17 th June 2019, she was in their apartment in Mwihoko with one Maryanne and Purity. She saw two men, one of whom had mattocks. He took her phone and told her to wake up Purity. According to her, the man who was commanding the assailants was the one who took her phone and they called their mother demanding a ransom and threatened to harm them. They emptied the victim’s bag which had books and three phones.
The complainant added that the assailants told Maryanne to carry 6 kg gas cylinder while one of them carried a 3 kg gas cylinder and they took her (Maryanne) into their custody. After one hour, Maryanne came back in pain and crying and wrote a note to their colleague Gladys that she had been raped by the two men. They raised an alarm to their neighbours and her and Gladys took Maryanne to St. John Hospital Githurai from where they proceeded to Nairobi Women Hospital.
She stated further that their room was a single room on a flat and it had iron sheets gate and there was no tight security. She could not remember whether the security light was on. She added that one of the men was tall and the other short and that the short one who was dark was commanding but she could not remember how they were dressed. She added that the incidence took thirty minutes and that they reported to the police after coming from the hospital.
On 13 th September 2019, she was called by PC Maina who told her to go to Githurai police station where she went and noticed the short and tall men. She added that she lost a Tecno Spark 2 phone and a 6 kgs gas cylinder. The phone was tracked by the police to Kiriri. She concluded her evidence by stating that she did not know the appellant. She was not cross-examined.
The second witness was the investigating officer Inspector Nekesa Baraza. He stated that a case of robbery with violence reported by three complainants on 18-05-2018 at Githurai Kimbo police station was allocated to him. The complainants were Purity Wambui, Eunice Magiri and Marryanne Nyambura who had been attacked by two men who were armed with mattocks and knives at their rental house near a university the witness did not identify. The witness added that Purity said that she lost two mobile phones.
He stated further that the two men took a mobile Tecno Spark and 6 kgs gas cylinder. Maryanne said that the two men took her HP lap top while they were armed, a laptop bag and 13 kg gas cylinder. After the robbery, the two men threatened them that they would injure them with knives and mattock. Maryanne was forced to follow the two men who defiled her and returned her to the house. He added that Maryanne had come with treatment notes from Nairobi Women Hospital and that he escorted her to Ruiru Hospital Centre where she was treated and a P3 and PRC forms filled. He identified the forms and Maryanne’s birth certificate.
The witness added that he recorded statements from the complainants and a witness he called Gladys. On 13 th September 2019, PC Maina, PC Nyagua and PC Mburu came with three suspects who had been arrested in relation to the case. They were Dennis, Wycliffe Koru Achola and Rodgers Anyira Tatu. He added that he had requested PC Maina to track for him the three suspects and that Eunice was at the police station when the suspects arrived and she identified Dennis Alitwa.
The witness stated further that he conducted identification parade prepared by Inspector Njuguna in which Maryanne and Purity identified Dennis Alitwa and were not able to recognize the other two suspects. In his own words, Dennis Alitwa was the ring leader who was ordering the gang. He did his investigations and charged the three suspects in Criminal case number 1109 of 2019 and after they took plea, they were remanded at Industrial Prison but on 19-11-2019, they were remanded at the Ruiru police station to proceed with the matter the following day but the appellant and Dennis Alitwa managed to escape from custody leaving him with Rodgers Anyira only which forced him to withdraw the case under Section 87A of the Criminal Procedure Code against the two escapees. The case proceeded and Rodgers was convicted of offence of handling stolen property and sentenced to three years imprisonment.
The Huawei mobile was found in possession of Rodgers who said that the phone had been sold to him by Wycliffe Achola Koru and he helped the police trace the appellant awho was arrested but they never found him with other lost phones.
He claimed that he was on 20-09-2020 called by the In-charge Ruiru police station who was holding a suspect called Ocharo Mbolikori. He enquired from Mumias police station and he went to the cell and identified the appellant who had changed his name to Wycliffe Achola Kori. He had been brought from Mumias having been arrested regarding another criminal case number 372 of 2020 and 374 of 2020 at Mumias Law Courts with offence of breaking into a building. The appellant had also been charged with escaping from lawful custody having escaped from Ruiru police station to which he pleaded guilty and convicted. The witness concluded his evidence in chief by producing a birth certificate and a Huawei phone as exhibits in the matter. However, despite the proceedings showing that he produced the exhibits, I am unable to find the exhibits or list of exhibits in the lower court file but I believe that they are not relevant to this appeal as they related to Maryanne who did not testify and the appellant was acquitted of the count which accused him of robbing her.
In cross-examination, the witness stated that he had sent his colleagues to help him trace suspects on 13-09-2019. He stated that Rodgers was found having sold Huawei phone and when Dennis was arrested, he took the police to the appellant but he did not have the Safaricom data base. He also stated that he was present when parade was conducted by Chief Inspector Caroline Njuguna and he never saw the appellant being pointed out or identified by the complainant. He added that he did not get any of the stolen items taken from the complainants and that he was still waiting for a DNA test.
Defence case
The testimony of the appellant who gave a sworn statement was not typed and I had to strain to read the handwritten proceedings for this portion. According to what I get from the handwritten testimony, the appellant told the court that on 13-09-2019, he woke up and went to work and on his way home, was stopped by two people who asked him for his identify card which he did not have as he had left it at work. He was driven to the police station and was told that his matter had been handled by PC Nekesa and he was brought to court where he was charged with this offence on 18-09-2019. He was not cross-examined.
Analysis and determination
I took painful time to decide whether to start with pointing out the glaring gaps and obvious and interesting errors of procedure and law manifested in the Magistrate’s judgment and the process of the prosecution or I should just go straight to acquitting the appellant.
I started this file by reading the judgment of the trial court and by the time I was through, I was pretty sure that something was wrong with the court’s findings. This was obvious from how the trial court analyzed the evidence of the two witnesses and the weight he gave to the evidence of the investigating officer who was openly giving hearsay evidence. Further, the judgment is so incoherent and disjointed that one would be forgiven for believing that the Honourable Court was in pain to piece the prosecution’s case together and save a horribly and poorly investigated and prosecuted case. I have no doubt in my mind that Miss Torosi failed to file submissions because it is professionally difficult for a reasonable prosecuting counsel to defend the conviction leave alone the sentence of the trial court.
This was serious case of robbery with violence attracting penalty of death sentence and it did not deserve the casual manner in which it was prosecuted. This is tempting me to believe that the motive for the whole trial and the conviction was not to punish for an offence duly committed but to pursue some different cause.
One glaring errors made by the trial court was the way she treated the evidence of the investigating officer. The analysis of the evidence is in such a way that the court must have treated the investigating officer as an eye witness to the incidences forming the basis of the offence. The role of an investigating officer is to collect and secure evidence, identify and procure attendance of witnesses and help in the process of prosecution of the case. Where the officer states what the witnesses told him, the court cannot rely on that testimony unless the same is corroborated by the witnesses who gave him the information and from whom he collected the evidence.
In this matter, there was only one witness other than the investigating officer. That witness was not in my view helpful to this case. Going by what the investigating officer told the court, PW1 did not participate in the identification parade. Her supposed colleagues Purity and Maryanne were the ones in the parade and they only identified Dennis Alitwa and could not pick the other two suspects. This witness stated from the witness box that she did not know the appellant which in my view meant that she had never seen him. The prosecutor did not lead the witness to identify any physical feature of the appellant which she could recognize. All that she said was that one of the robbers was short and dark while the other was tall. There are so many tall and short people of different complexions. Again, height of a person is relative and saying one is short or tall is not a safe method of identification unless it is accompanied by other features of recognition.
The Honourable Magistrate’s judgement has analysis which seems to suggest that conviction of one Rodgers who had been previously charged together with the appellant was a relevant factor of consideration. No proceedings or judgment in that case was produced and even if they were, that fact alone does not point to the guilt of the appellant. In any event, Rodgers was said to have been convicted of offence of handling stolen property and the complainant did not say that the Huawei phone allegedly recovered from Rodgers was stolen from her. Her testimony was that her phone was a Tecno Spark 2.
The trial Magistrate started her analysis by stating the ingredients of the offence of robbery with violence as; that the accused person was armed with a dangerous or offensive weapon; that the accused was in the company of more than one person and that the accused person threatened the victim and that the accused used actual violence immediately before, during and or after the said robbery incident. I must clarify that these ingredients are alternative and not conjunctive. Proof of one of them distinguishes what is known as simple robbery from robbery with violence. The Court of Appeal held in Reimond Munene Kamau & another v Republic [2018] KECA 250 (KLR), held that
‘To determine whether this was a case of robbery with violence or simple robbery, it becomes incumbent upon us to begin by setting out the facts of the case.
Section 296 (2) of the Penal Code provides;
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in the 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, strike or uses any other personal violence to any person, he shall be sentenced to death.”
In the case of Simon Materu Munialu vs Republic Criminal Appeal 302 of 2005, [2007] eKLR, this Court defined the ingredients for robbery with violence thus;
“…the ingredients that the Appellant and for that matter any suspect before the court on a charge of robbery with violence in which more than one person takes part or where dangerous or offensive weapons are used or where a victim is wounded or threatened with actual bodily harm or occasioned actual bodily harm is section 296(2) of the Penal Code”.
It will be observed that it is not a requirement that all the elements must be proved. The offence is proved if one of the elements is satisfied.’
The trial court may have identified the correct position for the incidence to be qualified as robbery with violence but problem comes where she attempted to fit the appellant’s case within these three.
The complainant is on record saying that she saw two men, one short and another tall. She could not identify the appellant at the police station or at the dock neither did she participate in the identification parade. The Honourable Magistrate placed the appellant in the scene by stating that the attackers were armed with offensive weapon and threatened the complainant and her colleagues. She went on to state that the complainant’s phone which she stated was Huawei was recovered having been sold to Dennis.
First, I am unable to connect the above statement with the testimony of the complainant. PW1 talked of having lost Techno Spark 2 and not a Huawei. To the contrary, the investigating officer testified that Rodgers and not Dennis was convicted of handling stolen property, the Huawei. Again, the alleged recovery from Dennis was not proved. The investigating officer did not testify how this recovery was made from Dennis who was not an accused person in this matter or a witness. The said Dennis who is said to have escaped was never found or convicted and in my view the investigating officer was not competent to speak to the phone having been sold to Dennis by the appellant.
Another area of the judgment I find interesting is paragraph 2 of page seven where the Honourable Magistrate stated that;
‘On the second issue, it is my further finding that the complainant’s attackers were in the company of more than one person. This is clearly proved by the evidence tendered by the first complainant PW1 who stated categorically that they were attacked and robbed on the material night of 17 th June 2019 by a group of two men including the accused person herein’.
This made me go through the testimony of the complainant three times just to ascertain that I was dealing with same file as what was in the trial court. The testimony of PW1 does not show anywhere where the complainant stated that the appellant was one of the two men who accosted her. As stated earlier, she did not identify the appellant at the police and she stated that she did not know the appellant. All that she said was that at the police station, she noticed the short man and the other two men. The officer who conducted the identification parade did not testify to prove that the appellant was part of the parade or the complainant clearly identified the appellant.
It is more astonishing when one reads the 3 rd paragraph of the same page where the Magistrate stated that; ‘… PW1’s testimony was corroborated by PW2 who tendered evidence that the accused was among the robbers who attacked the three complainants in their rental house in Mwihoko.’ She even went further to state that; ‘the above medical evidence tendered by PW2 proves beyond any doubt that indeed an actual violence was meted on the 3 rd complainant during the robbery incidence.’ There were no exhibits in form medical documents. What the proceedings show is that the P3 form and PCR forms were identified and not produced. A document that has been identified and not produced as exhibit does not form part of the proceedings and the trial court cannot rely on them in reaching a decision on any issue in dispute. In Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR, the Court of Appeal held that;
‘The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.’
The trial court’s judgment also shows that the Magistrate found that the appellant was part of the attackers even though the complainant could not identify the appellant. Let me quote what she says at page 10; ‘During identification parade, she positively identified Dennis Atitwa but was unable to identify the accused. I find that the first complainant’s failure to identify the accused did not discredit the fact that the accused and his accomplice robbed the complainant on the fateful night’. I am unable to reconcile this finding with the evidence tendered by the witnesses. She put words in the mouth of the witnesses and actually tried to close gaps in the prosecution’s case. It is only the Honourable Magistrate who can explain what was in her mind when she seemed to turn out as a prosecution witness instead of remaining an impartial arbiter.
Based on the above, I am inclined to follow the path taken by Honourable Justice M. Warsame (as he then was) in Jon Cardon Wagner v Republic & 2 others [2011] KEHC 3272 (KLR) where while faced with some comments made by the lower court in its judgment stated as follows;
‘In my view, it is not the function of a trial court to merely scrutinize the evidence to see if there is some evidence to support the prosecution. It must analyze the whole evidence and make its own findings and draw its own conclusion to avoid complaints of being biased against one side. It is difficult to define what amounts to bias but the court can rely on some findings made by the trial court as a positive indication that the court did not distinguish between evidence and speculative assertions. It is not the rol e of the court to make negative and skeptical scorn against the case of the accused persons. It is also important to understand that you cannot draw an inference without first eliminating every other reasonable hypothesis and ensuring that there were no other co-existing circumstances which would weaken or destroy the inference or bias or the weight to be attached to a particular witness.’
Another surprising portion of the judgment is found at page 11 where the Honourable Magistrate states that in her view, the complainant gave a very cogent and concise account of events of that night and that she remained unshaken under cross-examination by the appellant, while the record shows that the appellant did not cross examine the complainant.
I may go on and on for each of the paragraphs and sentences in the judgement which in my view are not only embarrassing but a manifestation of either lack of concentration or failure to read or follow her own proceedings. I am tempted to doubt that this judgment was written by the Honourable Magistrate whose judgments and rulings I have read before. Even the tone and style of the writing say much about the author. The trial Magistrate is urged to go through the judgment once more and reflect on whether the contents therein are actually product of her own judgment.
I think I have said enough about the judgment safe to add that the larger part of it calls for self-evaluation. It is regrettable that the impugned judgment has led to the appellant spending four years in jail. He may have been an offender in the eyes of the police or the court, but as the adage goes, it is better to have hundred offenders enjoying freedom than to have a single innocent person rotting in jail.
Other than what I have said about the judgement, I must state that the case must be the poorest of investigated and prosecuted matters I have ever come across. I join my Sister Honourable Lady Justice RE Aburili in expressing my disappointment on the conduct of the investigations as she did in Ochwari v Republic [2024] KEHC 14968 (KLR) thus;
‘ Such failure, as was in the instant appeal, causes an injustice to the complainant, while the accused person who would otherwise be held to account for his heinous crime walks away laughing loudest and may as well reoffend knowing that he will have a second bite at the cherry and get away with crime. As a result, victims of such heinous crimes never feel that justice was done.’
The upshot of the above is that this appeal succeeds. The conviction and sentence of the trial court is hereby set aside and substituted for an order acquitting the appellant. He shall be released from prison forthwith unless otherwise lawfully held.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of the appellant online from Kamiti Maximum Prison and Miss Torosi for the respondent.
2 | Page
The appellant has challenged the conviction and sentence pleading the following grounds;
1. THAT the Hon. trial court Magistrate erred in law and fact when she failed in not realizing that the circumstantial evidence adduced at the trial court did not place the accused person at the scene of the alleged crime.
2. THAT the Hon. trial court Magistrate erred in law and fact in failing to find that the ingredients forming the offence of robbery were not proved.
3. THAT the Hon. trial court Magistrate erred in law and fact by failing to find that the mode of arrest of the accused person was greatly unjustified by the evidence that was tendered against him by the prosecution.
4. THAT the Hon. trial court Magistrate erred in law and fact by failing to find that the key adversely mentioned witnesses were not called to testify and this left waging gaps and unexplained questions in the whole of the prosecution’s case whose doubts ought to have been resolved in favor of the accused person.
5. THAT the Hon. trial court Magistrate erred in law and fact by failing to comply with the express provisions of section 169 of Criminal Procedure Code in his appreciation of the evidence and analysis of the issues to be determined.
6. THAT the learned trial Magistrate erred in law and fact by failing to give regard to the appellant’s defence which exonerated him from any wrongful doing.
The appeal was ordered to be disposed of by way of written submissions. The appellant filed submissions dated 12 th March 2025. When the matter came for mention on 14 th July 2025, Miss Torosi for the respondent told the court that she had filed submissions on 10-06-2025 but I am unable to trace them either in the physical court file or the case tracking systems. All that the respondent filed in this matter was a notice of enhancement of sentence dated 14 th February 2025 which was filed on 14-02-2025.
This being a first appeal, I am required to re-evaluate and re-consider the evidence as recorded in the lower court and come to my own independent conclusion but in doing so, I must put into consideration the fact that I did not take the evidence first hand and had no opportunity to observe the demeanour of the witnesses. In doing so and for purposes of record, I will have to reproduce the testimony of the witnesses before I get into analysis of the same and my determination. The prosecution called two witnesses while the appellant gave a sworn statement in his defence and called no witness.
Prosecution’s case
Eunice Magiri Wairimu who was the complainant told the court that on 17 th June 2019, she was in their apartment in Mwihoko with one Maryanne and Purity. She saw two men, one of whom had mattocks. He took her phone and told her to wake up Purity. According to her, the man who was commanding the assailants was the one who took her phone and they called their mother demanding a ransom and threatened to harm them. They emptied the victim’s bag which had books and three phones.
The complainant added that the assailants told Maryanne to carry 6 kg gas cylinder while one of them carried a 3 kg gas cylinder and they took her (Maryanne) into their custody. After one hour, Maryanne came back in pain and crying and wrote a note to their colleague Gladys that she had been raped by the two men. They raised an alarm to their neighbours and her and Gladys took Maryanne to St. John Hospital Githurai from where they proceeded to Nairobi Women Hospital.
She stated further that their room was a single room on a flat and it had iron sheets gate and there was no tight security. She could not remember whether the security light was on. She added that one of the men was tall and the other short and that the short one who was dark was commanding but she could not remember how they were dressed. She added that the incidence took thirty minutes and that they reported to the police after coming from the hospital.
On 13 th September 2019, she was called by PC Maina who told her to go to Githurai police station where she went and noticed the short and tall men. She added that she lost a Tecno Spark 2 phone and a 6 kgs gas cylinder. The phone was tracked by the police to Kiriri. She concluded her evidence by stating that she did not know the appellant. She was not cross-examined.
The second witness was the investigating officer Inspector Nekesa Baraza. He stated that a case of robbery with violence reported by three complainants on 18-05-2018 at Githurai Kimbo police station was allocated to him. The complainants were Purity Wambui, Eunice Magiri and Marryanne Nyambura who had been attacked by two men who were armed with mattocks and knives at their rental house near a university the witness did not identify. The witness added that Purity said that she lost two mobile phones.
He stated further that the two men took a mobile Tecno Spark and 6 kgs gas cylinder. Maryanne said that the two men took her HP lap top while they were armed, a laptop bag and 13 kg gas cylinder. After the robbery, the two men threatened them that they would injure them with knives and mattock. Maryanne was forced to follow the two men who defiled her and returned her to the house. He added that Maryanne had come with treatment notes from Nairobi Women Hospital and that he escorted her to Ruiru Hospital Centre where she was treated and a P3 and PRC forms filled. He identified the forms and Maryanne’s birth certificate.
The witness added that he recorded statements from the complainants and a witness he called Gladys. On 13 th September 2019, PC Maina, PC Nyagua and PC Mburu came with three suspects who had been arrested in relation to the case. They were Dennis, Wycliffe Koru Achola and Rodgers Anyira Tatu. He added that he had requested PC Maina to track for him the three suspects and that Eunice was at the police station when the suspects arrived and she identified Dennis Alitwa.
The witness stated further that he conducted identification parade prepared by Inspector Njuguna in which Maryanne and Purity identified Dennis Alitwa and were not able to recognize the other two suspects. In his own words, Dennis Alitwa was the ring leader who was ordering the gang. He did his investigations and charged the three suspects in Criminal case number 1109 of 2019 and after they took plea, they were remanded at Industrial Prison but on 19-11-2019, they were remanded at the Ruiru police station to proceed with the matter the following day but the appellant and Dennis Alitwa managed to escape from custody leaving him with Rodgers Anyira only which forced him to withdraw the case under Section 87A of the Criminal Procedure Code against the two escapees. The case proceeded and Rodgers was convicted of offence of handling stolen property and sentenced to three years imprisonment.
The Huawei mobile was found in possession of Rodgers who said that the phone had been sold to him by Wycliffe Achola Koru and he helped the police trace the appellant awho was arrested but they never found him with other lost phones.
He claimed that he was on 20-09-2020 called by the In-charge Ruiru police station who was holding a suspect called Ocharo Mbolikori. He enquired from Mumias police station and he went to the cell and identified the appellant who had changed his name to Wycliffe Achola Kori. He had been brought from Mumias having been arrested regarding another criminal case number 372 of 2020 and 374 of 2020 at Mumias Law Courts with offence of breaking into a building. The appellant had also been charged with escaping from lawful custody having escaped from Ruiru police station to which he pleaded guilty and convicted. The witness concluded his evidence in chief by producing a birth certificate and a Huawei phone as exhibits in the matter. However, despite the proceedings showing that he produced the exhibits, I am unable to find the exhibits or list of exhibits in the lower court file but I believe that they are not relevant to this appeal as they related to Maryanne who did not testify and the appellant was acquitted of the count which accused him of robbing her.
In cross-examination, the witness stated that he had sent his colleagues to help him trace suspects on 13-09-2019. He stated that Rodgers was found having sold Huawei phone and when Dennis was arrested, he took the police to the appellant but he did not have the Safaricom data base. He also stated that he was present when parade was conducted by Chief Inspector Caroline Njuguna and he never saw the appellant being pointed out or identified by the complainant. He added that he did not get any of the stolen items taken from the complainants and that he was still waiting for a DNA test.
Defence case
The testimony of the appellant who gave a sworn statement was not typed and I had to strain to read the handwritten proceedings for this portion. According to what I get from the handwritten testimony, the appellant told the court that on 13-09-2019, he woke up and went to work and on his way home, was stopped by two people who asked him for his identify card which he did not have as he had left it at work. He was driven to the police station and was told that his matter had been handled by PC Nekesa and he was brought to court where he was charged with this offence on 18-09-2019. He was not cross-examined.
Analysis and determination
I took painful time to decide whether to start with pointing out the glaring gaps and obvious and interesting errors of procedure and law manifested in the Magistrate’s judgment and the process of the prosecution or I should just go straight to acquitting the appellant.
I started this file by reading the judgment of the trial court and by the time I was through, I was pretty sure that something was wrong with the court’s findings. This was obvious from how the trial court analyzed the evidence of the two witnesses and the weight he gave to the evidence of the investigating officer who was openly giving hearsay evidence. Further, the judgment is so incoherent and disjointed that one would be forgiven for believing that the Honourable Court was in pain to piece the prosecution’s case together and save a horribly and poorly investigated and prosecuted case. I have no doubt in my mind that Miss Torosi failed to file submissions because it is professionally difficult for a reasonable prosecuting counsel to defend the conviction leave alone the sentence of the trial court.
This was serious case of robbery with violence attracting penalty of death sentence and it did not deserve the casual manner in which it was prosecuted. This is tempting me to believe that the motive for the whole trial and the conviction was not to punish for an offence duly committed but to pursue some different cause.
One glaring errors made by the trial court was the way she treated the evidence of the investigating officer. The analysis of the evidence is in such a way that the court must have treated the investigating officer as an eye witness to the incidences forming the basis of the offence. The role of an investigating officer is to collect and secure evidence, identify and procure attendance of witnesses and help in the process of prosecution of the case. Where the officer states what the witnesses told him, the court cannot rely on that testimony unless the same is corroborated by the witnesses who gave him the information and from whom he collected the evidence.
In this matter, there was only one witness other than the investigating officer. That witness was not in my view helpful to this case. Going by what the investigating officer told the court, PW1 did not participate in the identification parade. Her supposed colleagues Purity and Maryanne were the ones in the parade and they only identified Dennis Alitwa and could not pick the other two suspects. This witness stated from the witness box that she did not know the appellant which in my view meant that she had never seen him. The prosecutor did not lead the witness to identify any physical feature of the appellant which she could recognize. All that she said was that one of the robbers was short and dark while the other was tall. There are so many tall and short people of different complexions. Again, height of a person is relative and saying one is short or tall is not a safe method of identification unless it is accompanied by other features of recognition.
The Honourable Magistrate’s judgement has analysis which seems to suggest that conviction of one Rodgers who had been previously charged together with the appellant was a relevant factor of consideration. No proceedings or judgment in that case was produced and even if they were, that fact alone does not point to the guilt of the appellant. In any event, Rodgers was said to have been convicted of offence of handling stolen property and the complainant did not say that the Huawei phone allegedly recovered from Rodgers was stolen from her. Her testimony was that her phone was a Tecno Spark 2.
The trial Magistrate started her analysis by stating the ingredients of the offence of robbery with violence as; that the accused person was armed with a dangerous or offensive weapon; that the accused was in the company of more than one person and that the accused person threatened the victim and that the accused used actual violence immediately before, during and or after the said robbery incident. I must clarify that these ingredients are alternative and not conjunctive. Proof of one of them distinguishes what is known as simple robbery from robbery with violence. The Court of Appeal held in Reimond Munene Kamau & another v Republic [2018] KECA 250 (KLR), held that
‘To determine whether this was a case of robbery with violence or simple robbery, it becomes incumbent upon us to begin by setting out the facts of the case.
Section 296 (2) of the Penal Code provides;
“If the offender is armed with any dangerous or offensive weapon or instrument, or is in the 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, strike or uses any other personal violence to any person, he shall be sentenced to death.”
In the case of Simon Materu Munialu vs Republic Criminal Appeal 302 of 2005, [2007] eKLR, this Court defined the ingredients for robbery with violence thus;
“…the ingredients that the Appellant and for that matter any suspect before the court on a charge of robbery with violence in which more than one person takes part or where dangerous or offensive weapons are used or where a victim is wounded or threatened with actual bodily harm or occasioned actual bodily harm is section 296(2) of the Penal Code”.
It will be observed that it is not a requirement that all the elements must be proved. The offence is proved if one of the elements is satisfied.’
The trial court may have identified the correct position for the incidence to be qualified as robbery with violence but problem comes where she attempted to fit the appellant’s case within these three.
The complainant is on record saying that she saw two men, one short and another tall. She could not identify the appellant at the police station or at the dock neither did she participate in the identification parade. The Honourable Magistrate placed the appellant in the scene by stating that the attackers were armed with offensive weapon and threatened the complainant and her colleagues. She went on to state that the complainant’s phone which she stated was Huawei was recovered having been sold to Dennis.
First, I am unable to connect the above statement with the testimony of the complainant. PW1 talked of having lost Techno Spark 2 and not a Huawei. To the contrary, the investigating officer testified that Rodgers and not Dennis was convicted of handling stolen property, the Huawei. Again, the alleged recovery from Dennis was not proved. The investigating officer did not testify how this recovery was made from Dennis who was not an accused person in this matter or a witness. The said Dennis who is said to have escaped was never found or convicted and in my view the investigating officer was not competent to speak to the phone having been sold to Dennis by the appellant.
Another area of the judgment I find interesting is paragraph 2 of page seven where the Honourable Magistrate stated that;
‘On the second issue, it is my further finding that the complainant’s attackers were in the company of more than one person. This is clearly proved by the evidence tendered by the first complainant PW1 who stated categorically that they were attacked and robbed on the material night of 17 th June 2019 by a group of two men including the accused person herein’.
This made me go through the testimony of the complainant three times just to ascertain that I was dealing with same file as what was in the trial court. The testimony of PW1 does not show anywhere where the complainant stated that the appellant was one of the two men who accosted her. As stated earlier, she did not identify the appellant at the police and she stated that she did not know the appellant. All that she said was that at the police station, she noticed the short man and the other two men. The officer who conducted the identification parade did not testify to prove that the appellant was part of the parade or the complainant clearly identified the appellant.
It is more astonishing when one reads the 3 rd paragraph of the same page where the Magistrate stated that; ‘… PW1’s testimony was corroborated by PW2 who tendered evidence that the accused was among the robbers who attacked the three complainants in their rental house in Mwihoko.’ She even went further to state that; ‘the above medical evidence tendered by PW2 proves beyond any doubt that indeed an actual violence was meted on the 3 rd complainant during the robbery incidence.’ There were no exhibits in form medical documents. What the proceedings show is that the P3 form and PCR forms were identified and not produced. A document that has been identified and not produced as exhibit does not form part of the proceedings and the trial court cannot rely on them in reaching a decision on any issue in dispute. In Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR, the Court of Appeal held that;
‘The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.’
The trial court’s judgment also shows that the Magistrate found that the appellant was part of the attackers even though the complainant could not identify the appellant. Let me quote what she says at page 10; ‘During identification parade, she positively identified Dennis Atitwa but was unable to identify the accused. I find that the first complainant’s failure to identify the accused did not discredit the fact that the accused and his accomplice robbed the complainant on the fateful night’. I am unable to reconcile this finding with the evidence tendered by the witnesses. She put words in the mouth of the witnesses and actually tried to close gaps in the prosecution’s case. It is only the Honourable Magistrate who can explain what was in her mind when she seemed to turn out as a prosecution witness instead of remaining an impartial arbiter.
Based on the above, I am inclined to follow the path taken by Honourable Justice M. Warsame (as he then was) in Jon Cardon Wagner v Republic & 2 others [2011] KEHC 3272 (KLR) where while faced with some comments made by the lower court in its judgment stated as follows;
‘In my view, it is not the function of a trial court to merely scrutinize the evidence to see if there is some evidence to support the prosecution. It must analyze the whole evidence and make its own findings and draw its own conclusion to avoid complaints of being biased against one side. It is difficult to define what amounts to bias but the court can rely on some findings made by the trial court as a positive indication that the court did not distinguish between evidence and speculative assertions. It is not the rol e of the court to make negative and skeptical scorn against the case of the accused persons. It is also important to understand that you cannot draw an inference without first eliminating every other reasonable hypothesis and ensuring that there were no other co-existing circumstances which would weaken or destroy the inference or bias or the weight to be attached to a particular witness.’
Another surprising portion of the judgment is found at page 11 where the Honourable Magistrate states that in her view, the complainant gave a very cogent and concise account of events of that night and that she remained unshaken under cross-examination by the appellant, while the record shows that the appellant did not cross examine the complainant.
I may go on and on for each of the paragraphs and sentences in the judgement which in my view are not only embarrassing but a manifestation of either lack of concentration or failure to read or follow her own proceedings. I am tempted to doubt that this judgment was written by the Honourable Magistrate whose judgments and rulings I have read before. Even the tone and style of the writing say much about the author. The trial Magistrate is urged to go through the judgment once more and reflect on whether the contents therein are actually product of her own judgment.
I think I have said enough about the judgment safe to add that the larger part of it calls for self-evaluation. It is regrettable that the impugned judgment has led to the appellant spending four years in jail. He may have been an offender in the eyes of the police or the court, but as the adage goes, it is better to have hundred offenders enjoying freedom than to have a single innocent person rotting in jail.
Other than what I have said about the judgement, I must state that the case must be the poorest of investigated and prosecuted matters I have ever come across. I join my Sister Honourable Lady Justice RE Aburili in expressing my disappointment on the conduct of the investigations as she did in Ochwari v Republic [2024] KEHC 14968 (KLR) thus;
‘ Such failure, as was in the instant appeal, causes an injustice to the complainant, while the accused person who would otherwise be held to account for his heinous crime walks away laughing loudest and may as well reoffend knowing that he will have a second bite at the cherry and get away with crime. As a result, victims of such heinous crimes never feel that justice was done.’
The upshot of the above is that this appeal succeeds. The conviction and sentence of the trial court is hereby set aside and substituted for an order acquitting the appellant. He shall be released from prison forthwith unless otherwise lawfully held.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of the appellant online from Kamiti Maximum Prison and Miss Torosi for the respondent.
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