https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10313

**Republic Of Kenya** **In The High Court Of Kenya At Mombasa** **Criminal Appeal No. E077 of 2023** **Arnold Muye Malanga………………………………….……………..……Appellant** **Versus** **Republic………………………………………….……………………………Respondent** *(Being an appeal against the original conviction and sentence in Criminal Case number 293 of 2018 of the Chief Magistrate’s Court at Mombasa by Hon. V.O. Adet (PM) delivered on 27 July 2023)* **Judgment** **Background** 1. The Appellant was found guilty of committing the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence are that the Appellant on the 16th day of November 2017 at Hamisi Estate in Changamwe sub-county within Mombasa County, jointly with others, being armed with a dangerous weapon namely: pistol, robbed Elizabeth Nthambi Mutua off one Samsung Ipad, three mobile phones make Samsung 5300, Infinix hot note, Huawei Y31 all valued at Kshs. 45,000.00 and ca sum of Kshs. 40,000.00 and during or immediately after such robbery used actual violence to the said Elizabeth Nthambi Mutua occasioning her actual bodily harm. 2. Upon conviction, the Appellant was sentenced to serve twenty (20) years’ imprisonment. 3. Aggrieved by the conviction and sentence, the Appellant has preferred an appeal to this court on the following amended grounds of appeal: 1. *That the learned trial magistrate erred in law and fact by convicting me in absence of any cogent and tangible evidence;* 2. *That the learned trial magistrate erred in law and fact by forming a conviction in reliance of single witness’ testimony that was not substantiated by an independent witness;* 3. *That the learned trial magistrate erred in law and fact by relying on contradictive, inconsistent and unsubstantiated witness’ account of the allegation levelled against me;* 4. *That the learned trial magistrate erred in law and fact by failing to put into consideration the period I spent in remand while on trial; and* 5. *That the learned trial magistrate erred in law and fact by finding my conviction and sentence by failing to take into consideration my unshaken defence.* **Evidence at Trial** 1. As a first appellate court, I am duty bound to evaluate all the evidence presented before the trial court afresh and to draw my own independent conclusions. This duty is, however, undertaken with awareness that I neither saw nor heard the witnesses first hand. [see, ***Okeno v Republic [1973] EA 32***]. 2. In support of its case, the prosecution called seven witnesses who testified while the Appellant testified under oath but did not call any witnesses. PW1 (Elizabeth Nthambi Mutua) testified under oath that on 16 November 2017 at around 6.30 pm she was coming back from work when she saw three people who had a motorcycle at her gate as she was being dropped by a motorcycle rider one Amos Mutua. The persons she saw accosted her demanding for money. She gave one of them her handbag and one of them shot her on both legs and they ran away. She was not able to see them clearly. She was later taken to Aga Khan hospital for treatment and was admitted for a week. She later reported the matter to the police station and was issued with a P3 form which was filled at Coast General Hospital. 3. PW1 further testified that the items that were in the bag that was stolen were: four phones worth the sum of Kshs. 45,000.00, a sum of Kshs. 45,000.00 in cash and audit (sic) of Kshs. 7,000.00. In total items plus cash worth Kshs. 92,000.00. She confirmed that one of the phones, Hot Note Infinix, which had been recovered by the Directorate of Criminal Investigations was her phone. The same was marked for production. She also identified a phone box indicating serial number 353486073085890 which was marked PMFI 3. It was her testimony that the phone had been sold to someone else and later traced by the police. The witness identified the Appellant as the person who was riding a motorcycle in the group that accosted her. Although she did not see his face since she fell down, she testified that he had dreadlocks and was well built. 4. On cross-examination, PW1 asserted that she saw dreadlocks. She testified that she did not do an identification parade to identify the Appellant. She further testified that her phone had been recovered from a lady who sells in a bar and it is the Appellant who had sold it to her. 5. PW2 (Joseph Kiti Chonga), testified that he owns two motorcycles – KMCF 081K and KMCK 203S and he had given one of them (KMCK 203S) to his nephew Muye Kazungu, the Appellant, on a sort of hire-purchase arrangement where the Appellant gave him a deposit of Kshs. 20,000.00 and would pay other instalments totalling a sum of Kshs. 25,000.00. The Appellant was using the motorcycle to commute. The witness testified that on 20 February 2018 he was informed that the said motorcycle had been used in a robbery. He later went and I identified it at the police station and also in court. On cross-examination, PW2 testified that he had an unwritten agreement with the Appellant for hiring the motorcycle and the same was witnessed. 6. PW3 (No. 91856 CPL Domitilla Nyaroso) testified that she was the investigating officer in the case. She testified that the matter was reported and in her investigations she was informed that the robber had escaped on a waiting motorcycle registration number KMCK 203S (blackish in colour) and they were pursued by members of the public leading to the abandonment of the said motorcycle at Bangladesh. The motorcycle was recovered and taken to the police station and the owner who was established to be Joseph Thoya was arrested. Upon arrest, the said Joseph Thoya informed the police that he had given the said motorcycle to his nephew one Arnold Muya malanga, the Appellant. PW3 further testified that on 19 February 2018, one mobile phone – make Hot Note Infinix which was among the things that were stolen was recovered in Bangladesh area from Elizabeth Atieno who informed the police that the said mobile phone had been left as security at a bar she works in after a customer by the name of Muya was unable to pay his bill. Elizabeth Atieno informed her that Muya was well known to her and was a regular customer. 7. The witness further testified that she was able to establish that the phone belonged to the complainant through the packaging box which bore IME number SR 353486073085852. She produced the phone and the packaging box as PEXH2 and DCXH 3, respectively. She also produced the motorcycle logbook, sale agreement and the motorcycle as PEXHT 5, PCXH 4(a) & (b) and PCXH 6, respectively. 8. It was PW3’s testimony that she interrogated the Appellant who informed her that the motorcycle in question belonged to his uncle and the same had been detained at Makupa for a traffic offence. He however did not have any proof of the same. The Appellant was arrested by PW3 in the company of CPC Nyaga, CPC Murinde – the driver. She identified the Appellant in court. 9. On cross-examination, the witness testified that the Appellant was not caught with the motorcycle. She also testified that the motorcycle had not been finger lifted as it had been touched by many people. She also testified that nothing had been recovered from the Appellant but that she was not trying to fix the Appellant. 10. PW4 (Amos Mutua Nthenge) testified that he is a *boda boda* rider and on 16 November 2017 he had a passenger one Elizabeth who was coming from Hamisi Estate near Changamwe Police. He testified that upon reaching her gate, they found a man sitting and he attached Elizabeth. He wore a black t-shirt and was dark and tall. Another person emerged with a pistol and he wore a black shirt. The third person came with a motorcycle and he had a helmet on. The witness testified that the person with a gun shot Elizabeth and the other one snatched her bag. The two jumped onto the motorcycle and they were pursued by the public. They later abandoned the motorcycle as they were being pursued and the same was taken to the police station. 11. PW5 (James Ndisia Mutio) testified that he is a *boda boda* rider and on 16 November 2017 at around 7.00 p.m. he received a call from Amos Mutua who informed him that he had been attacked. Amos informed him that he found people at his passenger’s gate who surrounded them. He also testified that they followed the attackers and found the motorcycle abandoned. They later took it to Changamwe. 12. PW6 (Dr. Gabriel Muhula) testified that the complainant had been examined by one Dr. Majda whom he had worked with for 2-3 years. He confirmed that the P3 form had a hospital stamp and the same was genuine. He testified that the doctor who had filled it was away for 5 years and that he had been authorized to give the evidence. It was PW’s testimony that the witness had been shot on both legs. It had been concluded that the probable type of weapon was sharp specifically a bullet and that the degree of injury was main. He produced the medical report as PEXH1. 13. PW7 (Elizabeth Moka Watia) testified that in August 2017 she bought a phone from one Lucy Atieno and she had used the phone for 8 months when she was arrested by the DCI at her home. She informed the police that the phone was sold to her by Lucy Atieno. She did not know the accused. 14. The Appellant was placed on his defence upon the finding by the trial court that a prima facie case had been established against him. He testified as DW1. It was his testimony that on 23 March 2018 he was in Mtwapa on his own business when a police officer informed him that he was required to present himself to Mtwapa police station whereupon he was informed that he would be taken to Changamwe. He was also informed that he was involved in robbery which he denied. He denied committing the offence. **Analysis and Determination** 1. Having considered the trial court record, the evidence and the grounds of appeal, the substantive issue for determination is whether the evidence presented before the trial court discharged the burden of proof, beyond a reasonable doubt, that the offence was committed by the Appellant. Further, this analysis will consider a sub-issue arising from the first issue being whether the evidence presented was contradictory and lastly whether the period spent in remand was taken into account in passing the sentence. 2. The offence of robbery with violence is created under Sections 295 and 296(2) of the Penal Code. The provisions provide as follows: *295. Definition of robbery:* *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. Punishment of robbery:* *1.…* *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 robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.* 1. While Section 295 of the Penal Code defines the offence of robbery, Section 296(2) provides circumstances where the commission of the offence of robbery will be considered one committed with violence. Under this provision, the prosecution is only required to prove one ingredient being whether: the offender was armed with any dangerous or offensive weapons; or whether is in company with one or more other person or persons; or whether immediately after the robbery, he wounds, beats, strikes or uses any other personal violence to any person. It is sufficient to demonstrate any of these ingredients. 2. The evidence before the trial court demonstrated without any doubt that PW1 was attacked by persons who were armed with a gun and while at it having snatched her bag inflicted gun shot wounds on her legs. The evidence of PW1 and PW2 was straightforward in regard to the robbery resulting in a loss of various items contained in PW1’s bag. The evidence of PW6 was uncontroverted that PW1 suffered the injuries as a result of the gun shots. The totality of the evidence was without a doubt satisfactory that PW1 lost items which included phones, cash and a bag through a robbery which was accompanied by violence. 3. The contention in this case was, however, whether the Appellant was one of the persons who were involved in the robbery. Although in her testimony she testified that the person who was riding the motorcycle had dreadlocks, she admitted that she was not able to see his face because he was wearing a helmet. The only evidence that remained was the evidence of the motorcycle which was recovered after the robbery. The evidence in this case was consistent that the motorcycle in question registration number KMCK 203S was the one used by the attackers to escape from the scene of crime. It was the testimony of PW1 and PW4 that the attackers escaped on a motorcycle and they were pursued by members of the public. PW3 – the investigating officer testified that this is the motorcycle that was recovered by members of the public after the attackers abandoned it and fled. 4. However, this court notes that this evidence is not direct evidence of the participation of the Appellant in the robbery rather it is circumstantial evidence. Courts have been cautioned to exercise circumspection whenever faced with this kind of evidence in the absence of any direct evidence.[[1]](#footnote-1) The court of appeal in ***Judith Achieng’ Ochieng’ v Republic*, Criminal Appeal 128 of 2006** set a four-test criteria that must be satisfied as follows: *It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy four tests:-* *i. The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established;* *ii. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;* *iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;* *iv. In other words, in order to justify a finding of guilt, the circumstantial evidence, in its totality, ought to be such that the incriminating facts lead to the unimpeded conclusion of guilt and that there are no co-existent facts that are capable of explanation upon any reasonable hypothesis other than that of the accused’s guilt.* 1. PW3 testified that investigations showed that the motorcycle was owned by one Joseph Thoya who had leased it to his nephew – the Appellant. The evidence, therefore, pointed to the Appellant as the person who had control of the motorcycle as the beneficial owner. In this case a nexus was established between the motorcycle in question and the robbery to the extent that the same was abandoned after members of the public gave the robbers chase. Further, the Appellant did not offer a credible explanation of the whereabouts of the motorcycle on the material day. The claim that the motorcycle had been impounded and was at Makupa police station was unsupported. I am, therefore, satisfied that the prosecution established that the getaway motorcycle was motorcycle registration number KMCK 203S and that the same was driven by the Appellant who was the beneficial owner. I also find that the Appellant failed to offer an explanation about the whereabouts of the said motorcycle on the day of the robbery. His allegation that the same had been impounded was not supported by any evidence. Further, the Appellant offered no evidence or real testimony in his defence beyond merely denying that he did not do it. 2. Consequently, I find that the evidence that established the Appellant’s guilt was cogent and unshaken. The same did not suffer from any contradiction or doubt. It is my finding, therefore, that the conviction was safe. 3. The Appellant has also challenged his sentence on the grounds that the time spent in custody was not taken into account. The trial court record indicates that the Appellant was released on bond but absconded prompting a warrant to be issued and cancellation of his bond. He was remanded in custody upon cancellation of the bond on 23 May 2022 until he was committed to prison to serve his sentence on 27 July 2023. Neither the sentence nor the warrant of commitment indicates whether the time spent in custody had been taken into account. I, therefore, find that the trial court failed to take into account the time spent in custody in passing the sentence. 4. Section 333 (2) of the Criminal procedure Code provides as follows: *Subject to the provisions of section 38 of the Penal Code (*[*Cap. 63*](https://new.kenyalaw.org/akn/ke/act/1930/10)*) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.* *Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.* 1. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: *The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:* *Time already spent in prison by the convict…* 1. I am also guided by the Court of Appeal’s determination in ***Ahamad Abolfathi Mohamed & another [2018] eKLR*** as follows: By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. 1. Consequently, this ground of appeal succeeds with the consequence that the time spent in custody by the Appellant being between 23 May 2022 and 27 July 2023 shall be taken into consideration in his sentence of 20 years’ imprisonment which runs from 27 July 2023. The remaining grounds of appeal are without merit and they are hereby dismissed. 2. Orders accordingly. **Judgment Dated and Delivered Virtually this 10th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Nabil M. Orina** **Judge** **In the presence of:** ***The Appellant logged in through Kamiti Maximum Prison*** ***Linda – Court Assistant*** 1. See, [***Kirimi v Republic [2025] KECA 410 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/410/eng%402025-02-21) [↑](#footnote-ref-1)