(Being an appeal from the conviction and sentence of Hon. Rita Orora in Mombasa Criminal Case No. E1142 of 2023)
Background
1. The Appellant was charged with the offence of Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 21st July 2023, at Maji Safi area in Likoni Sub-County within Mombasa County, jointly with another not before court, while armed with a dangerous weapon namely a panga, he robbed Wesley Ocharo of a Huawei mobile phone valued at Kshs. 30,000/= and a handbag containing (i) school documents and (ii) cash Kshs. 40,000/=, and immediately before or after the time of such robbery threatened to use actual violence against the said Wesley Ocharo.
2. The Appellant pleaded not guilty. Upon a full trial, he was convicted and sentenced to death.
3. Aggrieved by both conviction and sentence, the Appellant lodged this appeal.
Grounds of Appeal
4. The grounds of appeal, summarized, are that the learned trial magistrate erred in law and fact by:
a) Failing to find that the ingredients of the offence were not proved beyond reasonable doubt;
b) Relying on improper identification allegedly influenced by PW1 and PW2;
c) Failing to establish proof of theft;
d) Ignoring that the arrest was based on mere suspicion;
e) Imposing a mandatory sentence contrary to Articles 25(c) and 50(2) of the Constitution;
f) Failing to comply with Sections 216 and 329 of the Criminal Procedure Code
;g) Failing to properly consider the defence.
Prosecution Case
5. PW1, Wesley Ocharo, testified that on 21st July 2023, while on his way to work, he encountered two men. One stood in front of him while the other came from behind. The one in front, whom he described as tall, was armed with a panga and ordered him to stop and surrender his phone, which he did.
6. PW1 stated that the assailants also attempted to take his bag. There were some school going children who raised an alarm. He further testified that he recognized the tall assailant as “Tempa,” having seen him two weeks earlier being beaten by members of the public over theft of a motorcycle.
7. He reported the matter to the police and later identified the Appellant upon his arrest. None of the stolen items were recovered.
8. In cross-examination, PW1 maintained that although no identification parade was conducted, he was able to recognize the Appellant.
9. PW2, a village elder, testified that on 26th August 2023, while in the company of police officers, they encountered the Appellant and upon searching him found a knife in his bag. He recognized the Appellant as the person earlier reported by PW1.
10. PW3, a police officer, corroborated PW2’s testimony regarding the arrest and recovery of the knife.
11. PW4, the investigating officer, confirmed receipt of the complaint and subsequent arrest of the Appellant. He produced documentary exhibits.
Defence Case
12. The Appellant denied the offence and stated that he was arrested without any incriminating items and was falsely implicated.
13. He contended that there was no identification parade, no recovery of exhibits, and no proper description linking him to the offence.
Issues for Determination
14. The issues for determination are:
i. Whether the prosecution proved the case beyond reasonable doubt;ii. Whether the sentence imposed was justified.
Analysis and Determination
15. This being a first appeal, this court is guided by the principles in Okeno v Republic [1972] EA 32, which mandate a fresh and exhaustive re-evaluation of the evidence.
(i) Whether the offence was proved
16. The ingredients of robbery with violence were set out in Johanna Ndung’u v Republic (Criminal Appeal No. 116 of 2005) and include proof that the offender:
• Was armed with a dangerous weapon; or
• Was in the company of one or more persons; or
• Used or threatened to use violence.
17. These ingredients are disjunctive, as affirmed in Dima Denge Dima & Others v Republic (Criminal Appeal No. 300 of 2007) and Oluoch v Republic [1985] KLR 549.
(a) Whether the Appellant was armed
18. Although no weapon was produced in court, PW1 testified that the Appellant was armed with a panga during the robbery. PW2 and PW3 further testified that a knife was recovered from the Appellant at the time of arrest.
19. The law is clear that production of the weapon is not mandatory. In Oluoch v Republic [1985] KLR 549, the Court of Appeal held that proof that the offender was armed is sufficient even without production of the weapon.
20. In Karani v Republic [2010] eKLR, the Court reaffirmed that failure to produce the weapon is not fatal where credible evidence exists.
21. The court finds PW1’s evidence consistent and credible. Accordingly, this ingredient was proved.
(b) Whether the Appellant was in company
22. PW1 clearly testified that he was attacked by two men. This evidence was not rebutted.
23. This satisfies the second ingredient.
(c) Whether violence or threat was used
24. The Appellant threatened PW1 with a panga, which constitutes a threat of violence.
25. This ingredient was therefore also established.
(d) Identification
26. The conviction rests largely on recognition. The court is guided by Wamunga v Republic [1989] KLR 424 and Roria v Republic [1967] EA 583 on the need for caution.
27. PW1 recognized the Appellant in broad daylight and had seen him before. The conditions were favourable.
28. The principles in R v Turnbull [1977] QB 224 were satisfied, and the court finds the identification reliable.
29. In the circumstances, the prosecution proved the case beyond reasonable doubt.
(ii) Sentence
30. The Appellant was sentenced to death under Section 296(2) of the Penal Code.
31. The sentence is lawful. This court finds no basis to interfere.
Conclusion
32. The appeal lacks merit and is hereby dismissed in its entirety.
33. The conviction and sentence are upheld.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
In the presence of:
Appellant – in person
Mr. Sirima – for the State
Maureen– Court Assistant
Background
1. The Appellant was charged with the offence of Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 21st July 2023, at Maji Safi area in Likoni Sub-County within Mombasa County, jointly with another not before court, while armed with a dangerous weapon namely a panga, he robbed Wesley Ocharo of a Huawei mobile phone valued at Kshs. 30,000/= and a handbag containing (i) school documents and (ii) cash Kshs. 40,000/=, and immediately before or after the time of such robbery threatened to use actual violence against the said Wesley Ocharo.
2. The Appellant pleaded not guilty. Upon a full trial, he was convicted and sentenced to death.
3. Aggrieved by both conviction and sentence, the Appellant lodged this appeal.
Grounds of Appeal
4. The grounds of appeal, summarized, are that the learned trial magistrate erred in law and fact by:
a) Failing to find that the ingredients of the offence were not proved beyond reasonable doubt;
b) Relying on improper identification allegedly influenced by PW1 and PW2;
c) Failing to establish proof of theft;
d) Ignoring that the arrest was based on mere suspicion;
e) Imposing a mandatory sentence contrary to Articles 25(c) and 50(2) of the Constitution;
f) Failing to comply with Sections 216 and 329 of the Criminal Procedure Code
;g) Failing to properly consider the defence.
Prosecution Case
5. PW1, Wesley Ocharo, testified that on 21st July 2023, while on his way to work, he encountered two men. One stood in front of him while the other came from behind. The one in front, whom he described as tall, was armed with a panga and ordered him to stop and surrender his phone, which he did.
6. PW1 stated that the assailants also attempted to take his bag. There were some school going children who raised an alarm. He further testified that he recognized the tall assailant as “Tempa,” having seen him two weeks earlier being beaten by members of the public over theft of a motorcycle.
7. He reported the matter to the police and later identified the Appellant upon his arrest. None of the stolen items were recovered.
8. In cross-examination, PW1 maintained that although no identification parade was conducted, he was able to recognize the Appellant.
9. PW2, a village elder, testified that on 26th August 2023, while in the company of police officers, they encountered the Appellant and upon searching him found a knife in his bag. He recognized the Appellant as the person earlier reported by PW1.
10. PW3, a police officer, corroborated PW2’s testimony regarding the arrest and recovery of the knife.
11. PW4, the investigating officer, confirmed receipt of the complaint and subsequent arrest of the Appellant. He produced documentary exhibits.
Defence Case
12. The Appellant denied the offence and stated that he was arrested without any incriminating items and was falsely implicated.
13. He contended that there was no identification parade, no recovery of exhibits, and no proper description linking him to the offence.
Issues for Determination
14. The issues for determination are:
i. Whether the prosecution proved the case beyond reasonable doubt;ii. Whether the sentence imposed was justified.
Analysis and Determination
15. This being a first appeal, this court is guided by the principles in Okeno v Republic [1972] EA 32, which mandate a fresh and exhaustive re-evaluation of the evidence.
(i) Whether the offence was proved
16. The ingredients of robbery with violence were set out in Johanna Ndung’u v Republic (Criminal Appeal No. 116 of 2005) and include proof that the offender:
• Was armed with a dangerous weapon; or
• Was in the company of one or more persons; or
• Used or threatened to use violence.
17. These ingredients are disjunctive, as affirmed in Dima Denge Dima & Others v Republic (Criminal Appeal No. 300 of 2007) and Oluoch v Republic [1985] KLR 549.
(a) Whether the Appellant was armed
18. Although no weapon was produced in court, PW1 testified that the Appellant was armed with a panga during the robbery. PW2 and PW3 further testified that a knife was recovered from the Appellant at the time of arrest.
19. The law is clear that production of the weapon is not mandatory. In Oluoch v Republic [1985] KLR 549, the Court of Appeal held that proof that the offender was armed is sufficient even without production of the weapon.
20. In Karani v Republic [2010] eKLR, the Court reaffirmed that failure to produce the weapon is not fatal where credible evidence exists.
21. The court finds PW1’s evidence consistent and credible. Accordingly, this ingredient was proved.
(b) Whether the Appellant was in company
22. PW1 clearly testified that he was attacked by two men. This evidence was not rebutted.
23. This satisfies the second ingredient.
(c) Whether violence or threat was used
24. The Appellant threatened PW1 with a panga, which constitutes a threat of violence.
25. This ingredient was therefore also established.
(d) Identification
26. The conviction rests largely on recognition. The court is guided by Wamunga v Republic [1989] KLR 424 and Roria v Republic [1967] EA 583 on the need for caution.
27. PW1 recognized the Appellant in broad daylight and had seen him before. The conditions were favourable.
28. The principles in R v Turnbull [1977] QB 224 were satisfied, and the court finds the identification reliable.
29. In the circumstances, the prosecution proved the case beyond reasonable doubt.
(ii) Sentence
30. The Appellant was sentenced to death under Section 296(2) of the Penal Code.
31. The sentence is lawful. This court finds no basis to interfere.
Conclusion
32. The appeal lacks merit and is hereby dismissed in its entirety.
33. The conviction and sentence are upheld.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
In the presence of:
Appellant – in person
Mr. Sirima – for the State
Maureen– Court Assistant