https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8743

Cheruiyot v Republic (Criminal Appeal E046 of 2023) [2026] KEHC 8743 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8743 (KLR) Republic of Kenya In the High Court at Bomet Criminal Appeal E046 of 2023 JK Ng'arng'ar, J June 23, 2026 Between Amos Kimutai Cheruiyot Appellant and Republic Respondent (From the Conviction and Sentence in Criminal Case Number E021 of 2023 by Hon. Boke. in the Senior Principal Magistrate’s Court at Bomet) Judgment 1.The Appellant alongside another was charged with two counts. On the first count, he was charged with robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of this offence were that on the night of 24th December, 2022 at around 0030 hrs in Bomet Town within Bomet County jointly with others not before court robbed Wilson Soi 1 mobile phone make ITEL 2160 containing Kshs 100,341/= in the Safaricom Sim card, 1 airtel Sim card, National Identity Card s/n 23xx98 and a torch all property valued at Kshs 113, 814/- and immediately after the said robbery threatened to stab the said Wilson Soi with a knife. 2.On the second count, he was charged with conveying suspected stolen property contrary to Section 323 of the Penal Code. The particulars of this offence were that on 5th January 2022 at around 2000hrs in Bomet Town within Bomet County having been detained by No. 23xxxx PC Franklin Okwora and No. 90xxx PC Patrick Nyaoke as a result of the exercise of powers conferred by Section 26 of the Criminal Procedure Code, had in possession of the items as per the attached inventory reasonably suspected to have been stolen. 3.The Appellant pleaded not guilty to the counts before the trial court and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case, while the Appellant testified and closed his case. 4.At the close of the prosecution case, the trial Court ruled that a prima facie case had been established against the Appellant and he was put on his defence. 5.At the conclusion of the trial, the Appellant was convicted of the first count of robbery with violence and sentenced to 20 years imprisonment. 6.Being dissatisfied with the Judgment dated 14th September 2023, the Appellant, Godwin Kiplangat Kirui appealed to this court against his sentence and conviction. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh and come to my own conclusion. 7.I hereby procced to summarise the Prosecution’s and Respondent’s case in the trial court as well as their respective written submissions in the present Appeal. The Prosecution’s Case. 8.It was the Prosecution’s case that on the material night (24th December 2022), the Appellant and others violently robbed Wilson Soi (PW1) off his mobile phone make ITEL 2160, his National Identity Card and torch while threatening to stab him with a knife. The victim (PW1) stated that he was attacked by four men while on his way back home and they demanded for his M-pesa PIN and threatened to kill him if he failed to do so. PW1 further testified that the attackers grabbed him on his neck and injured him. 9.It was the Prosecution’s case that they were led to the Appellant’s whereabouts by his fellow accomplice. 10.Through their written submissions dated 9th March 2026, the Respondent submitted that they proved that robbery with violence occurred. That PW1 and PW2 testified that the assailants were armed with a knife which they used to threaten them. The Respondent further submitted that the assailants were more than one. 11.It was the Respondent’s submission that the Appellant and his accomplices took away the victim’s belongings and withdrew Kshs 101,000/= from the victim’s M-pesa account. That the Appellant was positively identified by the victim. It was the Respondent’s further submission that the 20-year sentence was lenient bearing in mind the maximum sentence being death. The Appellant’s Case. 12.The Appellant (DW2) denied committing the offence and further stated that he was not involved in stealing the victim’s money as his name did not appear anywhere. DW2 further testified that the recovered mobile phones belonged to customers as he operated a mobile phone repair shop. 13.It was DW2’s testimony that he did not share any money with Godwin (DW1). 14.At the time of writing this Judgement, the Appellant had not filed his written submissions despite being directed to do so by this court. I shall thus rely on his grounds of Appeal. 15.I have gone through and given due consideration to the trial court’s proceedings, the home-made grounds of appeal filed on 9th October 2023, and the Respondent’s written submissions dated 9th March 2026. The following issues arise for my determination: -I. Whether the Prosecution proved its case beyond reasonable doubt.II. Whether the Defence casts doubt on the Prosecution case.III. Whether the sentence was harsh and excessive. I. Whether the Prosecution proved its case beyond reasonable doubt. 16.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. Section 295 of the Penal Code defines robbery as: -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. 17.Section 296 of the Penal Code states as follows: -(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. 18.The Court of Appeal in the case of Johana Ndungu v Republic [1996] KECA 187 (KLR) set down the ingredients of robbery with violence by stating thus: -“In order to appreciate properly as to what acts constitutes an offence under section 296 (2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:1.If the offender is armed with any dangerous or offensive weapon or instrument, or2.If he is in company with one or more other person or persons, or3.If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” 19.Wilson Soi (PW1) testified that on the material night, he was with his wife (PW2) and they were attacked and he was robbed off his mobile phone make ITEL 2160, National Identity Card and a torch. PW1 further testified that he had Kshs 101,000/= in his M-pesa account which the Appellant and his accomplices demanded access to through use of threats. PW1’s testimony was uncontroverted upon cross examination. 20.Ruth Soi (PW2) testified that she was with her husband (PW1) on the material night when they were attacked by 4 assailants. PW2 further testified that they grabbed her while they ransacked her husband (PW1), stole from him before ransacking her. PW2’s testimony was uncontroverted upon cross examination. 21.As to the identity of the Appellant and his accomplices, the victim (PW1) and Ruth Soi (PW2) testified that they saw the Appellant and his accomplice due to the presence of street lighting. When the victim was cross examined, he testified that one had a scar on the face and the other one was bald. He further reiterated his testimony that he saw all their faces. 22.No. 90xxx PC Patrick Nyaoke (PW3) who was the arresting officer testified that he responded to a call from the victim that the victim had spotted Godwin (DW1). PW3 further testified that they were able to arrest DW1 and upon interrogating him, When PW3 was cross examined, he testified that DW1 admitted that together with the Appellant and others robbed PW1. No. 23xxxx PC Franklin Okwora (PW4) corroborated this testimony when he testified that DW1 had admitted that they shared the money they stole from the victim with the Appellant. When PW4 was cross examined, he testified that the Appellant was implicated as one of the robbers by DW1. 23.The evidence above indicated that the Appellant was placed at the scene of the crime by PW1, PW2 and DW1. The Appellant and his accomplices were positively identified by the victim and this led to the arrest of DW1. The Appellant was also identified in court. In the case of Muiruri & Others vs Republic (2002) KLR 274, the court held that: -“…………….We do not think that evidence will be rejected merely because it is dock identification evidence. The court might base a conviction on such evidence if satisfied that on the facts and circumstances of the case the evidence must be true and if prior thereto the court duly warns itself of the possible danger of mistaken identification.” 24.Flowing from the above, there is no doubt in my mind that the Appellant was positively identified by PW1 and PW2. To this end, I am satisfied that goods/money capable of being stolen had been stolen by the Appellant and they were stolen by more than one person. 25.As to the use of threats or force or causing harm, the victim PW1 and PW2 both testified that the Appellant threatened to stab and kill the victim if he did not give up his M-pesa pin. The victim (PW1) further testified that he was grabbed on his neck and got injured. Geoffrey Kirui (PW5) testified that he examined the victim and found that he had bruises on his neck, soft tissue injury on his forehead and upper limbs and chest pain. PW5’ s testimony on the nature of injuries suffered by the victim remained uncontroverted upon cross examination. It is my finding therefore that personal violence was occasioned to the victim in the midst of the robbery. Further, it is also my finding that the Appellant used threatened the victim with death to secure his goal. 26.Flowing from the above, I am satisfied that the Prosecution sufficiently proved the elements of the offence of robbery with violence as contained in section 296 (2) of the Penal Code. II. Whether the Defence casts doubt on the prosecution case. 27.I have already set out the defence of the Appellant earlier in this Judgment. I have considered the defence carefully and I have noted that the Appellants denied committing the offence and further denied sharing any loot with DW1. The Appellant further testified that he was dealt with mobile phone repairs and the recovered mobile phones belonged to customers. 28.As stated earlier in this Judgement, the Appellant was placed at the scene of crime by the victim and his wife (PW1) who were able to positively identify him and describe him using by his physical features. Further, the Appellant was implicated by his co-Accused (DW1) who testified that they robbed PW1 and PW2 together with the Appellant and shared the loot. 29.After considering the Appellant’s victim as a whole, it is my finding that his defence was shallow, weak and did not shake the Prosecution’s case at all which I have already found proven. III. Whether the sentence was harsh and excessive 30.Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. 31.The penal section for the offence of robbery with violence is found in Section 296 (2) of the Penal Code which provides: -If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. 32.Having considered the circumstances of this case, it is my view that the 20-year prison sentence was reasonable and just. I have no reason to interfere with the trial court’s sentence. 33.In the end, the Appeal has no merit and is dismissed. JUDGMENT DELIVERED,DATED AND SIGNED THIS 23RD DAY OF JUNE,2026........................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment delivered in the presence of;Siele/Susan – Court AssistantsMs Koech for the StateAppellant – present