[2025] KEHC 8576 (KLR)

Akhonya v Director of Public Prosecutions (Criminal Appeal E005 of 2024) [2025] KEHC 8576 (KLR) (27 May 2025) (Judgment)

Neutral citation: [2025] KEHC 8576 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E005 of 2024

S Mbungi, J

May 27, 2025

Between

Eugine Lirechi Akhonya

Appellant

and

Director of Public Prosecutions

Respondent

(Being an appeal from the Judgement, conviction, and sentence of Hon. J.J Masiga (SPM), in Kakamega Chief Magistrate’s Court Criminal Case No. E589 of 2020 delivered on 22nd January 2024)

Judgment

A. Introduction 1. The appellant herein & another, were 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 the 7th day of July, 2020 at Mukongolo sublocation, Isulu location in Kakamega South sub county within Kakamega County, jointly with another, while armed with a panga robbed Judith Muhonja Kidali, of mobile phone make Tecno, her national identity card No. 7905423, cash Kshs. 10,000/-, decoder make Armco, one hoofer and its two speakers make golden, one extension cable, two mobile phone chargers, two blankets and one duvet, two kilograms of sugar in a tin, one sufuria with cooked rice, two padlocks and a pair of shoes all valued at Kshs. 43,000/- and immediately after or immediately before the time of such robbery, used actual violence against the said Judith Muhonja Kidali.

2. In the alternative, the appellant was charged with the offence of handling stolen goods contrary to section 322(1)(2) of the Penal Code. The particulars were that on the 12th day of July, 2020 at Khayega township, Khayega location in Kakamega East sub-county within Kakamega County otherwise than in the course of stealing dishonestly retained extension cable, national identity card Number 7905423 of Judith Muhonja having reasons to believe that it was stolen goods.

3. The appellant pleaded not guilty to both counts. During trial the prosecution called eight witnesses who testified in support of their case. The appellant was placed on his defence and the defence called two witnesses. The trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and proceeded to sentence him to 30 years imprisonment.

B. Facts at Trial 4. PW1 was the complainant, Judith Muhonja. She recalled that on the material day, at around 8:48pm as she was locking her Verandah door, she saw two men. She was pushed to a bed in the sitting room and they demanded for her phone, pin number and asked her for money. She obliged and gave them Kshs. 10,000. She told the court that the accused persons took household items from her house a small radio, decoder, extension cable, bedsheets among others. She stated that she screamed for help after they left and her neighbors came and opened the door which had been locked form outside. The assistant chief called the police. She reported the matter to Isulu Police station and blocked her sim card at Safaricom where she was given her statement for the past couple of days.

5. She further told the court on 23. 09. 2021 that from the statement, Kshs. 100/- had been transferred to PW3 who was located by the police and recorded a statement. She stated that she was able to single out the accused persons from a 10-man parade and described their appearances. She stated that she only came to know of their names from the charge sheet and her items were recovered from the accused persons by the police. She stated that the accused persons were distant relatives of her husband.

6. On cross-examination, she reiterated her testimony and denied that the accused persons were brought to her house by the police.

7. PW2, was the assistant chief, Andrew Shivega. He recalled that on the material day at around 9pm, PW1 came to his house and reported that she had been attacked by people with armed pangas who stole various items from her house. He called a neighbor called Benard and together they went to the scene. He told Mr. Juma who was the police in charge. They recovered sandals and gloves which were produced as exhibits.

8. On cross-examination, he stated that he had never seen the accused before as they did not come from his area. He further stated that the sandals and gloves that were recovered from the scene were suspected to have belonged to the accused person who was not arrested at the scene.

9. PW3 was Doris, an alcohol vendor. She recalled hearing a knock at her door at around 9:30-10pm by one Eric Lukwa who was accompanied by two other people. They paid via M-pesa and left. She told the court that the police came to her after two days and informed her that the phone that had been used for the transaction had been stolen. She was taken to the police station where she participated in an identification parade. She identified the accused person from the parade.

10. Upon cross-examination by the court, she stated that she knew Eric since he came from their village and she was able to see the accused persons since there was sufficient light from the solar bulbs. She told the court that that the M-pesa transaction name was Judith, and she had questioned the suspects regarding the same.

11. PW4 was an M-pesa retailer from Khayega. She recalled that on 08. 07. 2020 the police came to her place of work and inquired whether she knew the suspects. She stated that she did not know the accused persons, however, they had withdrawn Kshs. 750/- from her. The M-pesa transaction extract was produced in court as MF1 12.

12. On cross-examination, she stated that ordinarily a customer ought to show her identity card while making a withdrawal, and she did not know whether the accused had been sent by a woman to make the withdrawal.

13. PW5 was CIP Silvester Olalo, No. 24516, the OCS at Malaika Police Station. He recalled that on 14. 07. 2020 he was at Kisulu police post to conduct an identification parade at the request of the Investigating Officer, Mohammed. He had two witnesses, PW1 and PW3. He stated that he explained to the accused the reason for the parade and he consented to the parade. PW5 picked out 8 people who looked like him and the accused stood between No. 2 and No. 3. PW3 went around and was unable to identify him. The accused was informed to pick any position for the second parade. He stood between No.4 and No.5. PW1 came in and identified the accused person by touching his shoulder. PW5 asked the accused person if he was satisfied with the identification parade, to which he agreed and signed.

14. On cross examination, he stated that the police quarters were approximately 7 meters away from the cells and that PW1 and PW3 could not see the accused persons or the members of the identification parade. He also stated that the relatives of the accused persons were not there.

15. Upon re-examination by the court, PW5 stated that the accused told him that he had no one to call.

16. PW6 was a butcher from Khayega, called Bonface Mirimo. He stated that he knew the accused person since he used to carry maize at Khayega and occasionally bought meat from his butchery. He recalled that on 10. 07. 2020 at around 10am, the accused person came to him and told him that he had some problem at home. The accused person gave him a DVD, and he gave him Kshs. 1000/-. He was supposed to hold onto it until the accused person paid him back. The accused person later came with the police who informed him that the DVD was stolen, he was taken to the police station where he recorded his statement. The DVD was produced as MF1 6.

17. On cross-examination, he stated that he had known the accused for a short period of time and he trusted him since he knew where he lived. He stated that the accused person gave him the DVD in the presence of another man.

18. PW7 was Eric. He stated that the accused persons came to his home with his brother Derrick and took him to drink alcohol. They left a bag in his house as they left. He also recalled that the 1st accused who was his friend had a panga. The 2nd accused (the appellant herein) was unknown to him. They both slept at his home and left in the morning. He later on heard that the accused persons had stolen from a doctor’s wife. He was arrested while at work after PW3 told the police that she knew him and they tracked his number.

19. On cross-examination, he stated that he had not witnessed the theft. He stated that the 1st accused told him that the panga was for protection. He further stated that the accused persons confessed to him that they had stolen.

20. PW8 was PC Shukri No. 89086. He recalled that PW2 called him and reported an incident of robbery with violence. They went to the scene and found PW1 who told them that she had been attacked by two armed men. There was sufficient electricity and she was able to see them well. They threatened to cut her and ordered that she gives them all her money. She gave them Kshs. 10,000/- and her M-pesa pin together with other household items. PW1 closed the line at Safaricom office Kakamega and got her M-pesa statement which showed that Kshs. 200/- had been sent to PW3 who in turn led them to PW7. They rescued accused 1 from a mob beating and he took them to accused 2 (the appellant) who lived in Khayega. They recovered a panga, the complainant’s ID, extension cable, left-hand glove, similar to the right-hand glove that was recovered from the scene. He took them to PW6 where the DVD recovered. The accused(appellant) had used PW1’s ID to withdraw Kshs. 750/- from PW4. PW8 the called PW5, briefed him on the case and told him to do an identification parade where the accused persons were identified by PW1 and PW3. He then charged the accused persons and the stolen items produced as exhibits.

21. On re-examination by the court, he stated that the right glove was recovered from the complainant’s scene. The Identity Card was recovered from the appellant’s (2nd accused) house, whereas the 1st accused was found with the complainant’s phone.

22. The court considered the evidence adduced by the prosecution and found that they had made out a prima facie case against the accused and placed him on his defence in accordance with Section 210 of the CPC.

C. Defence Case 23. DW1 was the 1st accused person, Eugene Ingosi. He stated that he could not tell what happened on 07. 07. 2020 but he was arrested on 11. 07. 2020 by thee people who took him to the police station. They did not tell him who they were or what mistake he had committed. The next day, he was taken to a homestead in Bishangani area, the owner was called. He was forced into the house and told to remove the items that were in the house. He stated that he declined but was forced. He took a phone that was charging and took it to the land cruiser. He further stated that he refused to sign an inventory but they beat him and forced him to sign. He was then charged with the current offence. He stated that he was innocent and prayed that the court releases him.

24. DW2 was the 2nd accused person, and appellant herein. He, too, stated that he could not recall what happened on 07. 07. 2020 but was called and arrested by the police on 12. 07. 2020. He stated that he was never informed of his mistake and took him to Bishangani to see the complainant. He found the 1st accused there and they waited for the complainant to come. He was then told to take a duvet from the complainant’s home. He refused and was beaten. He was then taken to the police station and charged. He stated that he was innocent and prayed to be released.

25. The trial court considered the evidence adduced and found the Appellant guilty as charged.

26. In mitigation, the prosecution submitted that the accused had no previous record and thus was a first offender. The accused prayed that the court considers the time he had spent in prison since he had been in custody for four years. He also submitted that he suffered from tuberculosis (T.B) and was a first offender.

27. The court considered the mitigation by the accused person and sentenced him to thirty (30) years imprisonment.

D. The Appeal 28. The Appellant being dissatisfied by the conviction and sentence filed this petition of Appeal dated 05. 02. 2024 on the following grounds:i.That, the trial magistrate failed in his findings by not observing that the probability of positive identification at the scene of criminal was irregular.ii.That, the trial magistrate failed in his findings by not appreciating the fact that the identification parade was conducted in contravention of chapter 46 of Force standing orders.iii.That, the learned trial magistrate erred in law and facts by placing inordinate weight on the single evidence (hear say) of pw. 1 regarding ownership of the exhibit without warning himself of the dangers of such evidence.iv.That, the learned trail magistrate grossly misdirected himself in law and facts in convicting and sentencing the appellant in light of inconsistent, flimsy, fabricated disjointed, malice, suspicious and doubtful evidence of prosecution without noting and considering that the same was not watertight enough to upheld a safe conviction.v.That, the learned trial magistrate erred in law and facts by shifting the burden of proof to me and therefore mis-evaluating my plausible defence of Alibi.vi.That, in all manner and circumstances the sentence imposed was harsh excessive and not considerate of the period spent in remand custody.

29. The appellant prayed that the Conviction be quashed, the Sentence of 30 years be set aside and the appellant herein be set at liberty.

30. The appeal was admitted and the court directed that merits of this Appeal be canvassed by way of written submissions. At the time of writing this judgment, only the appellant had filed submissions.

C. Appellant’s Case. 31. The appellant filed supplementary grounds of appeal with his submissions challenging both his conviction and sentence as follows:i.That the trial court erred in law and in fact in denying the appellant his absolute right to a least prescribed sentence in not making a finding that his sentence should run from his date of arrest pursuant to article 25(c) 50 (2) (p) COK 2010 section 333(2) CPC paragraph 5. 1.21 SPGS Revised 2023. ii.That the trial erred in both law and fact in convicting the appellant relying on inconclusive evidence of identification of a single eye witness under difficult condition and circumstantial evidences that were flawed without considering the necessary circumspections and skepticism.iii.That the trial court erred in law in not finding the identification parade of no evidential value due to it faulting the L.D.P Force Standing Orders. Two suspects 1st and 2nd accused were identified among same members of the parade or same members of parade were used to identify 1st and 2nd accused who are of different appearance contrary to section 6(iv) PW1 had seen the members of the parade two suspects 1st and 2nd accused were identified among same members of the parade or same members of parade were used to identify 1st and 2nd accused who are of different appearance c/s 6 (iv) (d) PW1 had seen the members of the parade before therefore she know the added person in the members of parade was the suspect c/s 6 (iv) (k) chapter 46 force standing orders (influence)iv.That the trial court erred in law and in fact in not appreciating the appellant’s defence that overwhelmed the prosecution

32. On sentence, the appellant submitted that the trial court erred in not directing that the sentence should run from the date of his arrest being 11th July, 2020 as required under Article 25(c) and 50(2)(p) of the constitution, Section 333(2) of the Criminal Procedure Code, and Paragraph 5. 1.21 of the Sentencing Policy Guidelines (Revised 2023), but rather from the date of sentencing being 22. 01. 2024. He contended that failure to factor in the period spent in pre-trial custody rendered the trial unfair and the sentence excessive.

33. On conviction, the appellant took issue with the trial court’s reliance on the evidence of a single identifying witness under circumstances that, according to him, were not conducive for proper identification. He asserted that PW1’s initial report lacked any description of her attackers and only identified them post-arrest and at the dock, raising the possibility of afterthought and dock identification.

34. The appellant further submitted that the identification parade conducted was of no probative value. He submitted that it contravened the provisions of Section 6(iv)(d) and (k) of Chapter 46 of the National Police Service Standing Orders, as the same set of parade members was used to identify both the 1st and 2nd accused persons, who are of different physical appearances. Moreover, PW1 had allegedly seen the members of the parade beforehand, thus compromising the integrity of the process.

35. The appellant challenged the admissibility of the M-Pesa and mobile data relied upon by the prosecution, arguing that the same was produced without a certificate under Section 65(8) and Section 106B of the Evidence Act, Cap 80, and without calling the makers of the documents, thereby denying him the right to cross-examine the sources of critical evidence.

36. The appellant averred that key prosecution witnesses; PW3 (Doris), PW6 (Boniface Mirimo), and PW7 (Erick), were accomplices and should not have been relied upon without independent corroboration. He cited Karanja & Another v Republic (1990) KLR, which held that accomplice evidence is generally untrustworthy unless properly corroborated due to, the tendency to shift blame, the moral unreliability as a participant in the crime, and the possibility of testifying under a promise or expectation of pardon.

37. The appellant further alleged torture, claiming that he was forced to sign an inventory under duress, in violation of Article 25(a) of the constitution and the Prevention of Torture Act, 2017, which prohibits the use of any evidence obtained through torture.

38. Lastly, the appellant submitted that the trial court failed to adequately consider his defence, which he submitted discredited the prosecution’s case. He maintained that he was not found in possession of any stolen property, and the inventory was a product of coercion. He accused certain witnesses of colluding with the police, through bribery and manipulation, to exonerate themselves and implicate him falsely.

D. Analysis & Determination 39. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor.

40. This court is guided by The Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.

41. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”

42. I have gone through the trial court proceedings, the trial court judgment, the petition of appeal and the appellant’s submissions.

43. I isolate the following issues for determination:i.Whether the trial court was wrong to rely on the following aspects of evidence to convict the appellant.a.Whether it was wrong for the trial court to admit and rely on the evidence of Mpesa transaction without following the law.b.Whether it was wrong for the trial court to admit and rely on the evidence of PW3 ( Doris) PW6 (Boniface) PW7 ( Erick) who according to the appellant were accomplices.c.Whether it was wrong for the trial court to admit and rely on evidence of inventory made after the following items were allegedly found in the house of the appellant i.e One gramy bag (blue in colour), One panga, National Identity Card No. 7905423, One extension cable, One glove (Left hand) whilst he was tortured to sign the inventory.d.Whether the trial court was wrong to admit and rely on the evidence on identification of a single witness (PW1).ii.Whether the trial court considered the appellants defence of alibi.iii.Whether the sentence metted out by the trial court was lawful and commensurate to the offence committed.

Determination 44. On the issue of admission of Mpesa transaction. I note from the record they were admitted as Pexhibit No. 12, which this one I will agree with the appellant it was wrong for the trial court to admit that kind of evidence for whoever produced it, it being electronically generated evidence did not produce a certificate certifying its sources as required by Section 65 sub section 8 and Section 106 b of the evidence act.

45. On the issue of whether the court was wrong to admit and rely on the evidence of PW3, PW6 and PW7 for according to him they were accomplices.

46. This court is alive to the principle that evidence of an accomplice is the weakest form of evidence which for it to attract a safe conviction it has to be corroborated with other independent evidence. Section 141 of Evidence Act CAP 80: Accomplices. An accomplice shall be a competent witness against an accused person; and a conviction shall not be illegal merely because it proceeds upon the uncorroborated evidence of an accomplice. See the case of Karanja & another v Republic[1990]KLR.

47. I have looked at the evidence, there is no evidence which shows that PW3,PW6 and PW7 they were at the scene when the complainant was robbed. PW3 sold alcohol to the appellant who was in company of PW7. PW6 testified on how he loaned the appellant Kshs. 1,000/= and in return the appellant gave him a DVD to hold as security and it is the appellant who took the police to PW6. PW1 testified that she was robbed by two people whom she picked in the identification parade.

48. From the above analysis I find that the appellant assertion that PW3,PW6 and PW7 were accomplices cannot stand. This ground of appeal fails.

49. The appellant also alleged that he did not voluntarily sign the inventory produced in court as exhibit 14, he was tortured and forced to do so which was contrary article 25(a) of the constitution and the preventation of torture act which outlaws admission and reliance on an evidence obtained through torture.

50. I have looked at the lower court record , the plea was taken on 15th July, 2020 the appellant never told the court that he was tortured before he was charged, therefore I find that his assertion that he never voluntarily signed the inventory showing the items found in his house was an afterthought. So the trial court cannot be faulted for admitting and relying on the inventory as a piece of evidence.

51. On whether the identification parade was wrongly conducted contrary to Section 6(iv) and (k) of chapter 46 of the National Police Service Standing orders as the same set of parade members was used to identify both the 1st and 2nd accused persons, who are of different physical appearances and PW1 had allegedly seen the members of the parade beforehand, thus compromising the integrity of the process.

52. I have looked at page three paragraph (d) of the identification parade form of Eugene Ingosi who was the 1st Accused in the lower court and identification parade form of the appellant. Paragraph (d) lists down the members who participated in the identification parade its only Alex Ambundo who participated in both identification parades. I find this not to be prejudicial to the whole exercise. The officer who conducted the identification parade largely complied with the requirements as contemplated in Chapter 46 of the National police service standing orders. Further there is no evidence that the complainant was exposed to the appellant before the identification parade was done.

53. The other issue is whether the complainant positively identified the appellant as one of the assailants. The Complainant PW1 testified that she was not knowing the two persons who attacked and robbed her for they were strangers. She said that it was around 8. 48 pm and that her house was well lit with electricity lights. The robbery took around 30 minutes. This was adequate time for one to mark someone, the attackers had not concealed their faces, first accused placed a panga on her neck, that was so close for one to conclusively mark a face of someone. So it was not hard for the complainant to pick the appellant and his co-accused in the identification parade.

54. The court is alive to the principle that the trial court has to caution itself when relying on evidence of a single identifying witness, it has to examine such evidence and satisfy itself that the circumstances of identification were favourable and free of any possibility of an error.

55. The court of appeal in Wamunga -vs- R (1989) KLR 424 reiterated the position of the law when it observed:-“Where the only evidence against a defendant is the evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction’’.

56. I have looked at the judgment of the trial magistrate, Paragraph 15, the magistrate correctly examined PW1’s evidence and found that the identification was proper and further that her evidence was corroborated by evidence of PW3 who received a sum of Kshs 200/=through the complainants phone which was stolen from her and the attackers had forced her to disclose her Mpesa pin number. PW4 whose Mpesa shop the appellant withdrew Kshs 750/= using the identity card of the complainant which was recovered from him. He lied that he had been sent by the complainant, PW7 who testified that the appellant and his co-accused went to his house thereafter took them to PW3 bar where he paid Kshs. 100/= using complainants phone, PW6 lend 2nd accused Kshs. 1,000/= in exchange of a DVD as a security. The DVD which was found from the complainant. Other items belonging to the complainant were also recovered from the appellant and his co-accused. Therefore I find that the trial magistrate cannot be faulted in any way for believing the complainant evidence.

57. On the issue on whether the trial court never considered the accused persons defence of alibi, I have looked at the record the appellant on his defence told the court that he could not recall what happened on 7th July, 2020 for a defence of alibi to stand it should be brought early enough in the proceedings so that the prosecution can have a chance to rebutt. The appellant only said he did not remember what happened on 27th July, 2020, he did not lay the basis for the defence of alibi therefore this ground of appeal fails. In this case of R.V – Sukha Singh S/o Wazir Singh and others ( 1939) 6 E.A C.A 145 the court held that-; “if a person accused of anything and his defense is an alibi, he should bring forward that alibi as soon as he can, because firstly if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the internal and secondly if he brings it forward at the earliest possible moment, it will give the prosecution an opportunity of inquiring into the alibi and if they are satisfied as to its genuine, proceedings must stop.”

58. I have also looked at Paragraph 7 of the trial court judgment he has concisely set out the ingredients required to be proved in a case of robbery with violence and cited the Court of Appeal decision in the case of Joseph kaberia Kahinga & 11 others Vs Attorney General (2016) EKLR stated that:-“the offence under section 296(2) of the penal code in addition to the ingredients specified under section 295 of the Penal Code has the following ingredients:-The offender is armed with a dangerous or offensive weapon or instrument, or the offender is accompanied with one or more persons(s). The offender wounds, beats or inflicts any other personal violence to any person immediately before of after the time of robbery.

59. The trial court methodically applied the law to the facts as presented by the evidence of witnesses.

60. In a nutshell I find that all elements for the offence of robbery with violence were proved to the satisfaction of the trial court , I have no reason to interfere with the finding that appellant and his co-accused committed the offence consequently I hereby upheld the conviction of the appellant.

61. The appeal on conviction is hereby dismissed for reasons alluded herein above .

62. On the sentence passed against the appellant, I find that it was a lawful sentence for the only sentence provided for by the law when one is convicted for the offence of robbery with violence is death, I note the appellant was sentence to serve 30 years in prison with the trial court, this is understandable for the time the sentence was passed the jurisprudence surrounding mandatory death sentence was not clear. The Supreme Court has since clarified, in the case of Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023), that mandatory or minimum sentences under other statutes, such as the Sexual Offences Act and Robbery with violence, remain valid and constitutional unless and until successfully challenged. I will not disturb the sentence passed by the lower court only that it will start running from 11. 7.2020 when the appellant was arrested and placed in custody.

63. So in a nutshell I find that the appeal has no` merit both on conviction and sentence, it is dismissed on its entirety.

64. Right of appeal 14 days.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 27TH DAY OF MAY, 2025S.N MBUNGIJUDGEIn the presence of :Court Assistant – Elizabeth Angong’a