https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6681

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARALAL** **CRIMINAL APPEAL NO. E015 OF 2024** **AKANU LOKADAR…………………………..……………….APPELLANT** **VERSUS** **REPUBLIC…………………………………………………...RESPONDENT** **(Being an Appeal against the conviction and sentence by Hon. J.H.S Wanyanga (PM) delivered on 12th September 2024 in Maralal SPMCCRC No. E274 of 2023)** **JUDGEMENT** 1. The Appellant was charged with two counts of the offence of robbery with violence contrary to section 295 as read with 296(2) of the penal Code. The particulars of the offence were that on 31st August 2023 at Logorate area in Samburu Central Sub County, within Samburu County, jointly with others not before court, being armed with dangerous weapons, namely rifles, he robbed Lematon Lepalkimoi of 27 heads of cattle valued at Kshs. 1,350,000/- and during the time of such robbery, used actual violence on the said Lematon Lepalkimoi. 2. On the second count, the accused person, on the same date, at the same place, jointly with others not before court, being armed with dangerous weapons, namely rifles, he robbed Pulanti Lenyalwa of 20 heads of cattle valued at Kshs. 5,000,000/- and during the time of such robbery, used actual violence on the said Pulanti Lenyalwa. 3. The Appellant pleaded not guilty and the matter proceeded for full trial during which the prosecution called ten witnesses. At the close of the prosecutions’ case, the trial court found the appellant as having a case to answer and put him on his defence. He then gave unsworn testimony and called no witnesses in his defence. By the judgement delivered on 19th September 2024, the Appellant was convicted on both counts and upon considering his mitigation, the Appellant was sentenced to 30 years’ imprisonment to run from 18th September 2023, concurrently. 4. Dissatisfied with the decision, the Appellant filed this Appeal vide a Petition of Appeal dated 15th May 2025. The appeal is premised on the following grounds; 5. **That, the learned trial magistrate erred in matters of law and facts by convicting (me) whereas all the elements of Robbery with Violence were not conclusively reached upon.** 6. **That, the learned trial magistrate erred in matters of law by convicting on inadequate evidence.** 7. **That the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution case was not proved beyond all shadow of doubts.** 8. **That, by merits of the case and other emerging jurisprudence, 60-year sentence is harsh and inappropriate under the circumstances of the case.** 9. The Appeal was prosecuted by way of written submissions. The Appellant filed his submissions on 14th October 2025 whereas the respondent filed submissions on 17th September 2025. **Appellants’ Submissions** 1. The Appellant opened his submissions by listing Amended Grounds of Appeal in accordance with section 350(2)(v) of the Criminal Procedure code to wit; 2. ***That, the learned trial magistrate erred in law and fact by failing to find that identification was not proved and the identification parade was flawed.*** 3. ***That the ingredients of the offence of Robbery with Violence were not conclusively proved as required by the law.*** 4. ***That crucial witnesses were not availed by the prosecution to testify.*** 5. ***That, the learned trial magistrate erred in law and fact by failing to find that nothing stolen was recovered from the appellant.*** 6. ***That, the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence.*** 7. ***That the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence.*** 8. The Appellant submitted that the matter before the court is a matter identity as the learned trial magistrate wrongly ruled that the appellant was properly identified yet the identification parade did not follow the laid down parade identification parade rules. He urged that the burden was on the prosecution to prove all the elements of the offence and that this being a criminal case, the standard of proof was beyond any reasonable doubt. Counsel cited Wamunga vs Republic, ***[1989] KLR 424-Criminal Appeal No 20 of 1989 and Roria v R, [1967] EA 583*** in this regard. He urged that the trial magistrate properly cited the court of appeal ***Maitanyi*** vs ***Republic [1986] KLR 198,*** ***and urged that the l***earned trial magistrate did not caution himself on relying on the evidence the prosecution witnesses as to identification. He maintained that the conditions for identification in the instant matter were not conducive to allow positive identification. 9. Counsel urged that the trial magistrate relied on the evidence of PW1 to convict the appellant yet PW1 did not take part in the identification parade conducted at the police station. Further, that PW1 told the court that he was grazed by a bullet on his right ear. It is therefore very clear that he must have been in shock when the attack occurred and was not in a good position to identify the robbers positively. Further, that PW2 told the court that he ran away because he was scared and that he told court that the said robbery took place at 4 PM and it was raining. He urged that while raining, it is not easy to identify a person leave alone seeing the scar on one’s face. He placed reliance on the case of ***Regina*** vs ***Turnbull [1976] 3WLR 445*** where the English Court set out the factors to be considered before relying on one’s evidence on identification. 10. The Appellant urged that from the evidence on record, the prosecution witnesses did not state the amount of time that they spent with the robbers, though the prosecution did state the that they had met the appellant earlier before the incidence, they did not state how often and they did not give any specific reasons for remembering their assailants. 11. He maintained that PW2 was not a truthful witness because in his examination in chief, he told court that he used to meet the appellant in market severally and that he knew the appellant yet he did not give the appellant’s names to the police before the arrest. Also, while under cross examination by the appellant, PW2 told court that he was able to recognize the appellant by the scar on his forehead and that the appellant was 40 meters away from where PW2 was sheltering from the rain. He urged that it was not possible for PW2 to recognize the appellant with the scar on his face while 40 meters away and while heavily raining. 12. The Appellant urged that it was not possible for PW4 to identify his perpetrator while 60 meters away keeping in mind that it was heavily raining. He maintained that the appellant’s identification was not proved and reproduced Pw2’s testimony in this regard. 13. Additionally, he questioned why the police chose to let PW2 participate in the identification parade yet PW2 knew the appellant prior to the identification parade. He urged that the magistrate acted in error by holding that the appellant was properly identified yet the conditions for identification were not positive and the identification parade was flawed contrary to the Police force standing orders. 14. The Appellant acknowledged the provisions of **section 134** of the Evidence Act and cited the cases of ***Bukenya & Others v Uganda*** and ***Edward Maruti Simiyu v Republic [2013] KECA 399 (KLR) in this regard.*** He urged, however, that failure to call crucial witnesses who could have provided material evidence may weaken the prosecution’s case and invite adverse inference from the court in favour of an accused. He urged the court to find that the appellant was not arrested at the scene of crime neither was he arrested while being in possession of the stolen cattle. That he was arrested out of mistaken identity as the prosecution through PW1 told court that the appellant was handed over to the police because he refused to return the stolen cattle and that the matter was reported by the Pokot elders. He submitted that the prosecution ought to have called the Pokot Elders as prosecution witnesses to be examined by the appellant. Further, that the failure by the prosecution to avail the informer and the Pokot Elders who informed them that the appellant was part of the robbers that attacked the complainant violated the appellant’s right to a fair trial as enshrined under article **25 (c)** & **50(2) (a)** & **(k)** of the Constitution. 15. The Appellant urged that the prosecution failed to prove the ingredients as set out in the case of ***Oluoch VS Republic [1985] KLR.* He pointed out that** though the prosecution witnesses did allege that the perpetrators of the instant offence were armed with firearms, the prosecution did not prove that the appellant was armed or was part of the people that committed the instant offence. Secondly, no evidence was adduced to link the appellant was part of the people that committed the instant offence. Thirdly, it was not proved that it was the appellant that applied force or threats the victims of the instant offence. The gun that was used to assault the victims as alleged was not recovered from the appellant and therefore, if indeed the robbers used any force or threats against the victims of the instant offence, it was not proved that the appellant used any force against the appellant. For these reasons he prayed that he be acquitted. 16. The Appellant submitted that, his defence rightly poked holes in the prosecution case by telling court the identification parade was flawed since the appellant had been seen by the before the parade was conducted. That he further told the court that the charge sheet indicated that it was cattle that was stolen but PW9, the investigation officer, told the court that 500 heads of cattle and goats were stolen. This was a clear indication that the appellant was arrested out of a mistaken identity and if the trial magistrate took into consideration the appellant’s defence, the appellant could have been acquitted. 17. The Appellant submitted that nothing stolen from the victims was recovered from the appellant and no evidence was adduced to connect the appellant with the said cattle. Further, no evidence was adduced to prove that the stolen cattle were recovered and that even if they were recovered, they were not recovered from the appellant. He urged this court to find the same. **Respondents’ submissions** 1. Counsel for the state submitted that the Appellant was properly identified by PW1, PW2, PW4 and PW5 who were able to recognize the scar on his forehead at the crime scene. That he led three raiders in coming to Lokorate and stealing 47 heads of cattle by using riffles. He stated that PW7 (Chief Inspector Muli) testified that the appellant was placed between participant number 6 and 7, who were all of the same height. PW2 was able to recognize him by touching him and additionally, the appellant was placed between participant number 3 and 4. PW1 was able to recognize him by touching him. He urged that the Identification Parade was properly conducted by PW7 who adhered to the law. 2. Counsel urged that the Prosecution adduced direct and documentary evidence linking the appellant to the offence. The testimonies of PW1-PW6 clearly placed the appellant in the scene of incident and the witnesses were able to identify and recognize the appellant’s scar on his forehead and gap on his teeth. Counsel cited Section 296 (2) of the Penal Code and submitted that the ingredients of the offence of robbery with violence were clearly set out by the Court of Appeal in the case of OLUOCH VS - REPUBLIC [1985] KLR. 3. He maintained that the ingredient of Robbery with Violence was proved appropriately. The appellant was armed and in the company of 3 raiders, who immediately before the robbery, used actual force to steal the 47 heads of cattle. The prosecution relied on cogent and overwhelming evidence to prove the guilt of the appellant. 4. Counsel urged that the prosecution availed all the crucial witnesses in this matter and the direct and documentary evidence adduced by the Prosecution was appropriate and satisfactory to prove the offence of Robbery with Violence. He cited the case of Bukenya & Others vs Uganda [1972] E.A.549 in this regard, urging that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case. 5. On whether the trial court erred in law and fact by failing to find that nothing stolen was recovered from the appellant, Counsel urged that PW8 (Anti- Stock Unit) testified that he was together with his colleagues when they arrested the appellant at Lonyek Market. The recovery of the stolen cattle was dangerous, since they heard gunfire warning at appellant’s home. he submitted that in Robbery with Violence cases, recovery of the stolen 47 heads of cattle is not a mandatory ingredient of the offence. 6. Counsel submitted that the Appellant opted to give unsworn statement as his defence. No witnesses were called by the appellant to corroborate his evidence. Henceforth the cogent prosecution’s case went unchallenged by the appellant’s defence. He cited the case of Jamaal Omar Hussein v Republic [2019] eKLR and urged that the trial court was right in convicting and sentencing the appellant to 30 years imprisonment in Count 1 & 2 to run concurrently. **Determination** 1. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See **Okeno vs. Republic [1972] E.A 32)**. 2. **PW1** was **Leremas Lenyarua** who testified that on 31st August 2023, he was herding cows at Logorate with Pulanti Lenyarua and others when at 4pm and while sheltering from rain, some cattle rustlers came while armed with guns and shot in the air and a bullet hit Pulanti on his leg. Further, that the rustlers were four in number. He was able to see the accused clearly, and he was armed with a gun. He stated that they lost about 47 cattle and was able to recognize the Appellant as he had broken front teeth, a scar on his forehead and a sliced left ear. 3. During cross examination he stated that he was able to recognise the accused and he was instructed by Pokot Elders to return the stolen cattle and refused and that’s why they handed the accused over to the police. 4. **PW2** was **Francis Lupaira** who stated that on the material date he was herding his sheep together with PW1. He corroborated PW1’s testimony and was summoned to the police station on 4/9/2023 where he was able to recognize him as one of the raiders. During cross examination, he stated that he had met the accused several times at the market. That he recognised him by the scar on his forehead. 5. **PW3** was **Lematon Lepalkymoi** who stated that on the material date he was herding his cows at Lokorate when raiders came and stole a total of 47 cows. That they tried trailing the cows up to Lonyek and the Elders there gave them a list of the names of the raiders and the accused was in the list. 6. **PW4** was **Pulanti Lenyarua** who testified that on the material date it had rained while they were herding cows at Lokorate. While sheltering with PW1 raiders came and he was able to recognize one of them who had a scar on his forehead. As the gunshots rang in the air he was shot on his right leg and was able to recognize the person who shot him who was the accused. He produced the P3 form and Discharge summary as PMFI-1a and 1b. Further, that he didn’t know the accused person before this incident. 7. During cross examination, he confirmed that the accused shot him and that he hid under thick shrub and the accused could not see him but he saw him clearly. He was able to recognize him as he came so close to where he was hiding. 8. **PW5** was **Lenai Lelegwe** who stated that on the material date he was herding his cows when the Pokots raided them at Logorate with PW1, 2 and 3 and hid under a tree when the raiders shot at them. He was able to recognize one raider who had a scar on his forehead, ear and teeth. Further, that there was a time he met him before this incident. That they recovered a few of the cow’s photos of which were taken. 9. During cross examination he stated that the accused was the one who walked near to where he was hiding and he was able to see his face, scar on the fore head. That he described his teeth and mouth was and the same was recorded in his statement. Further, that the cows were recovered from Lonyek area and the same was recovered from the nine suspects whose names were given out by Pokot Elders. 10. **PW6** was **Karayai Lelegwe** who testified that on 31/8/23 at about 4pm he was herding cows and it started raining. He hid under a tree and after the gunshots rang out. After the raiders disappeared they realized that one boy had been shot. 11. **PW7** was **Inspector Francis Muli** who stated that on 4/9/23 he was called by DCI Mr. Maiyo who requested him to conduct an identification parade on the accused who was then a suspect in the case of Robbery with Violence. He arranged for the same as per the standing orders and they used about nine people excluding him who were of the same height as the accused. That the accused was informed of the reason for identification parade. The participants were placed on a line together with the accused who close to stand between participant No.6 and parties part No.7. The first witness to identify was Francis (PW2). He identified the accused by touching him on his hand. 12. The second witness participant also identified the accused by touching him on his hand. He finalized the identification parade and asked the accused if he was satisfied, but he stated that the witnesses saw him prior to the exercise while he was being transported from Suguta to Maralal. He stated that he signed the identification parade form which he produced as PExhibit.b.2. 13. During cross examination, he stated that as given under police service there should be people not less than eight with similar height to the suspect and accused to choose by himself where he wants to stand. That the accused consented to be subjected to the identification parade and he recorded the complaint that the witnesses had seen him prior to the parade and just before the parade at the police station. 14. **PW8** was **Sergeant David Majeshi** from Anti Stock Theft Unit. He stated that he was the arresting officer and that a certain robbery took place at Lokorate on 30/8/23. When they got the report, they traced the cattle trail, which led them towards Laikipia. They gathered intelligence that the one of the suspects was spotted with the cattle that morning and held a meeting with the Elders who gave them a list and they found one of the persons in the list at Lonyek Market. He stated that they arrested him and brought him to Suguta Police Station and as they were escorting him to Suguta there was gunfire warning which prevented them from recovering the stolen cattle from his home. The accused was interrogated and they learnt that the cattle were driven to cookres Ranch in a forest. 15. During cross examination, he stated that they collected intelligence that the accused used to commit cattle rustling in Laikipia and Samburu and they could not disclose the name of their informer. Further, that one of the cattle was recovered from his home and the cattle were recovered from his home and they arrested him after getting information that they were involved in theft. 16. **PW9** was **PC Erick Kiprono Tamil**, the investigating officer. He stated that on 31/8/2023 he conducted investigations and proceeded to the scene of incident and brought the dead bodies to the mortuary. He stated that about all cows were recovered. He testified that on 1/9/2023 an Elder from both Samburu and Pokot held a meeting to try and reach a truce. Information was also given to officers at Longewan and one suspect was handed over to the security. That on 4/9/23 an identification parade was conducted by C.I. Muli O.C.S Maralal Police Station. Two witnesses positively identified the suspect. 17. He stated that the accused was identified while standing between 6&7 persons of the parade. He changed clothes and changed position to between number 3 & 4 and he was still positively identified. He was then charged as herein. 18. During cross examination, he stated that the witnesses were the ones who identified the Accused person and that they conducted the identification parade as required under the law. That no witness saw him before the identification parade and some of the witness knew him at the market place at Lokerate. 19. **PW 10** was **Aaron Ngetich** a clinical officer base at Maralal Samburu County Referral Hospital. He stated that on 4/9/2023 he was at outpatient when a patient was brought with gunshot wound on his right leg with entry and exit wounds. The patient was admitted for surgical intervention and he filled the P3 form. He had a bullet injury on the right lower limb and he produced the P3 form as P-Exhibit 1b and the discharge summary as P-Exhibit 1a. 20. The court found that the Appellant had a case to answer and he was then placed on his defence. 21. He gave unsworn testimony and stated that the identification parade was impartially done. That the officer was biased as the people who identified him on the parade saw him prior to the conduct of the identification parade. After the parade they still proceeded with further investigation. He stated that they lied that he was involved as no evidence confirmed the same. that no recoveries were done or pinned on him. That they confirmed to the court that it was goats which were stolen but the witnesses stated that it was cattle which were stolen from them. He further stated that he was framed. 22. As aforestated, the trial court considered the evidence on record, convicted the Appellant and sentenced him to serve 30 years imprisonment on both counts concurrently from 18/9/2023. **Determination** 1. The issues that arise for determination are the following; 2. **Whether the offence of robbery with violence was proved beyond reasonable doubt** 3. **Whether the sentence was harsh or excessive in the circumstances** 4. The offence of robbery with violence is provided for under sections 295 and 296(2) of the Penal Code as follows: **“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.** **296 (2) 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 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.”** 1. In **Johana Ndungu vs Republic (1996) eKLR**, the Court of Appeal set out the following as the ingredients that need to be proved ; **“(i) if the offender is armed with any dangerous or offensive weapon or instrument; or** **(ii) if he is in company with one or more other person or persons; or** **(iii) if at or immediately before, or immediately after the time of the robbery, he wounds, beat, strikes or uses any other violence on any person”.** **See also Oluoch -v- Republic (1985) KLR** 1. In **Dima Denge & others -V- Republic (2013) eKLR**, the Court of Appeal stated as follows; ***“the elements of the offence under section 296(2) are three in number and they are to be read not conjunctively; but disjunctively. One element is sufficient to found an offence of robbery with violence”.*** 1. The Appellant disputes his identification as the perpetrator of the offence. However, he was placed at the scene of the crime by PW1, pointing out that he had a scar on his forehead although he did not attend the identification parade. PW2 however recognised the appellant as he had met him at the market before and therefore his identification was by way of recognition. PW4 and PW5 were also able to identify the appellant as one of the raiders and pointed out the distinguishing feature of the scar on his forehead and described his ear and teeth that also had distinguishing features. PW7, having conducted the Identification parade, testified and confirmed that PW2 identified the Appellant at the identification parade. The Identification parade report was also produced as Exhibit 3 and corroborated his testimony. 2. The importance of identification of an accused in a case of robbery with violence was indicated by the Court of Appeal in the case of **Suleiman Kamau Nyambura v Republic [2015] eKLR** where it stated that: *“****In addition, and what is crucial in a criminal trial is also the requirement to prove in addition to there being one of the set out ingredient of robbery with violence is the need to positively identify the assailant/s in question.”*** 1. In the case of**Anjononi & Others vs. Republic (1976-80) 1 KLR** 1566 at page 1568, the Court of Appeal held that ***“................ recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends on the personal knowledge of the assailant in some form or other.”*** 1. In this instance, the identification of the Appellant was proper as it was by way of recognition and also an identification parade was conducted. It is my considered view that the witnesses were consistent as the Appellant had unique identifying marks that were described consistently by all the witnesses, including those who did not recognise him. Therefore, the allegation that the identification was erroneous does not hold water in the circumstances. The evidence as to his identification was consistent, cogent and galvanized by an identification parade. 2. The witnesses testified that the Appellant and the other raiders were armed with rifles and they even shot PW4 who confirmed that the Appellant was the one who shot him, which evidence was corroborated by PW 10 as to the injuries sustained. They described his physical features, especially the scar on his forehead. 3. Further, the testimonies of the witnesses were consistent that the Appellant was in the company of others and that during the time of the robbery, they used the weapons to shoot and injure one of them. The injuries occasioned were corroborated by the production of the P3 form by PW4 and the testimony of PW10. I also note that PW8, the Sergeant from Anti Stock theft unit, was able to cogently explain how the Appellant was voluntarily handed over to them by the elders and that they were able to recover three of the cows. 4. I therefore find that the conviction of the Appellant was safe. 5. The next issue is whether the sentence was harsh/excessive in the circumstances of the case. The principles applicable in considering whether to interfere with the sentence of a trial court on appeal were enunciated in the case of **Mbogo & Another v Shah (1968) 1 EA. 93** thus: - ***“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”*** 1. Section 296(2) of the Penal Code provides; **296 (2) 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 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.”** 1. The prescribed sentence for the offence of robbery with violence is death. The trial court having sentenced the Appellant to 30 years imprisonment for each count was erroneous. The court did not indicate how it arrived at this sentence despite the current jurisprudence being that the only sentence available for robbery with violence is death. 2. The Supreme court of Kenya had declared the mandatory death sentence unconstitutional in the case of **Francis Karioko Muruatetu & Another vs R (2017) eKLR**. However, the court gave directions in [**Muruatetu & Another v Republic; Katiba Institute & 4 other*s***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2021/31)**(Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions)** commonly referred to as “***Muruatetu II***”, that the same was only Applicable to Sexual Offence Cases and not murder cases. 3. Furthermore, the Supreme Court of Kenya emphasized in the case of **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)** that until a challenge to mandatory sentences is taken up before the courts all the way to the Supreme Court, such sentences are lawful and cannot be interfered with. 4. Additionally**,** in the case of **Wamwoma vs. Republic (Criminal Appeal 19 of 2018 [2024] KECA 546 (KLR)** it was stated as follows: ***“On the issue of sentence, the appellant was sentenced to the mandatory death sentence as provided for the offence of robbery with violence under Section 296(2) of the Criminal Procedure Code. The appellant contended that the sentence imposed upon him was unconstitutional. However, in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (amicus curiae) (2021) eKLR, (Muruatetu 2), the Supreme Court clarified that notwithstanding its holding in Muruatetu that the mandatory nature of the death sentence under Section 204 of the Penal Code is unconstitutional, the death sentence in regard to the offence of robbery with violence under Section 296(2) remains valid until the constitutional validity of that sentence is fully argued before the High Court and escalated to the Court of Appeal. As this is yet to be done, the sentence of death that was imposed upon the appellant remains a lawful sentence.”*** 1. As it stands, the sentence prescribed by statute is death and it is therefore my considered view that the sentence by the trial court was erroneous. 2. I note that in their submission, the state urged the court to uphold the conviction and sentence imposed by the trial court. Further, I note that no notice of enhancement was served on the Appellant and I find it prejudicial to interfere with the sentence to his disadvantage. I will let the matter lie. 3. With the result that the appeal lacks merit and is dismissed in its entirety. **Dated signed and delivered virtually this 15th day of May 2026** **A.K. NDUNG’U** **JUDGE**