https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9849

Bwanaobo v Republic (Criminal Appeal E073 of 2025) [2026] KEHC 9849 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9849 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E073 of 2025 JN Njagi, J July 2, 2026 Between Bahaji Ali Bwanaobo Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. M. M. Wachira, PM, in Lamu Principal Magistrate’s Court Criminal Case No. E029 of 2023 delivered on 5/6/2024) Judgment 1.The Appellant was convicted in count 1 for the offence of robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code and in count 2 for occasioning a person grievous harm contrary to 234 of the Penal Code. 2.The particulars of the offence in count 1were that on the 24th day of May, 2023 at 8030 hours at Tchundwa village in Lamu East sub-county within Lamu County (with another who was acquitted) while armed with dangerous weapons namely pangas and wooden sticks (fimbo) they robbed Jonathan Muramba Masha (herein referred to as the complainant) of a mobile phone make Bontel-L1200 (button), one hundred Kenya shillings, and a gas lighter all estimated to be Ksh.1,725/= immediately before or immediately after the time of such robbery used actual violence to the said complainant. 3.The particulars of the charge in count 2 were that on the same day, time and place as in count 1 they did grievous harm to the above said complainant. 4.The Appellant was sentenced to serve 15 years imprisonment in respect to count 1 and 10 years imprisonment in respect to count 2. He was aggrieved by the conviction and the sentence and lodged the instant appeal. 5.The grounds of appeal are that:1.That the learned trial magistrate erred in law and fact in relying on evidence of identification by PW1 which evidence was not reliable.2.That the learned trial magistrate failed to consider that the identification parade conducted in the case was irregular.3.That the learned trial magistrate erred in law and fact by failing to consider the sharp contradictions, inconsistencies and invariances in the evidence of the prosecution witnesses.4.That the learned trial magistrate failed to consider that the doctrine of recent possession of the exhibits did not apply in the case.5.That the learned trial magistrate failed to consider that the sentence imposed on the appellant was unconstitutional, null and void.6.That the learned trial magistrate erred in law and fact in failing to consider the Appellant’s strong defence evidence. Prosecution Case 6.The case for the prosecution was that the complainant was at the material time a resident of Tchundwa village. That on the material day at about 6.30 pm he was at a path between Tchundwa village and Nyabogi village. He saw the Appellant and another person carrying bags and sticks. He was known to the Appellant as he had worked at their home. He was not known to his colleague. He greeted them but they told him to give them whatever he had. He told them that he did not have anything. They descended on him with a panga and sticks and beat him up. They cut him with the panga on the head, left arm, above the eye and ear. He gave the Appellant his possessions which were a mobile phone, cash Ksh.100 and a gas lighter. They left him and went away. A passer-by came along. He gave him his son’s phone number and informed him of the attack. He walked to his home. His son PW3 went home on a motor cycle and took him to Faza Sub-county hospital where he was treated. He was found with 4 cut wounds on the head and one on the left forearm. He had an injury on the eye. He was admitted for one day. 7.It was the evidence of PC Daniel Koome PW1 and IP Paul Ongesa PW2 both of Kizingitini police station that on the 25/5/2023 at 11am they were on patrol at Kizingitini village when they were directed to two men who had attacked a person at Tchundwa village. They went to Kwa Mbongo shopping centre where they found two people, the appellant and a colleague, seated and arrested them. PC Okemwa PW5 searched the Appellant and recovered a mobile phone from him. The people took them to their house where they recovered their identity cards. They took them to Kizingitini police station. 8.The complainant was issued with a P3 form. It was completed by a doctor PW4 of Faza sub-county hospital who classified the degree of injury as grievous harm. 9.The complainant then received a report that some people had been arrested. He went to Kizingitini police station. IP Ongesa PW2 conducted an identification parade and the complainant identified the Appellant as one of the people who had attacked him. He identified the phone recovered from the Appellant as the one he was robbed of by the people. The appellant was charged with the offences. 10.During the hearing the investigating officer did not testify in the case as he had gone on transfer. A police officer at Kzingitini police station PC Musyoka PW6 who had taken over the police file after his colleague went on transfer, produced the mobile phone as exhibit, P.Exh.1. He produced the Appellant`s identity card as exhibit, P.Exh.5(b). IP Ongesa PW2 produced the parade identification form as exhibit, P.Exh.7.The doctor PW4 produced the P3 form and the treatment notes as exhibits, P.Exh.9 and 10 respectively. Defence case 11.When placed to his defence the Appellant stated in a sworn statement that he is a fisherman and was living at Kizingitini with his mother and siblings. That on 25/5/2023 he was coming from a barber shop when he was arrested by policemen who searched him and confiscated his identity card. He was not told the reason for his arrest but they said that they needed his identity card. He was taken to the police station where he was photographed. An identification parade was conducted and the complainant picked him and said that he knew him before. He did not know the complainant. He denied that he was found with any phone. He denied that policemen took him to his house after arrest. 12.The appeal was disposed of by way of written submissions. Analysis and determination 13.This being a first appeal, the duty of the court is as was stated by the Court of Appeal in Okeno vs R [1972] EA 32:An appellant on a first appeal 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 whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..." 14.The trial magistrate in this case found that the ingredients of the offence of robbery with violence were proved against the appellant. That the appellant was at the time of the robbery identified by the complainant (PW3) as he was a person known to the complainant before. 15.The appellant however submitted that the offence was not proved to the required threshold of beyond reasonable doubt as he was not identified as the perpetrator of the offence. 16.The offence of robbery with violence is stipulated under sections 295 and 296(2) of the Penal Code. The sections provides as follows:Section 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. 17.Section 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 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.In the case of Johana Ndungu vs. Republic CRA 116/1995 the Court of Appeal set out the three ingredients that constitute the offence of robbery with violence and held thus:“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. 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 after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved will constitute the offence under the subsection: 1.If the offender is armed with any dangerous or offensive weapon or instrument; or 2.If he is in company with one or more other person or persons; or 3.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.One of the ingredients of the offence of robbery with violence is assault on the victim. That being so, a separate charge of assault or grievous harm is unnecessary. It is a duplication of the charge. I therefore find that the charge in count 2 was a duplex and of no consequence. 20.The prosecution in the case relied on the evidence that the Appellant was identified by the complainant as being one of the people who robbed him; that he was found in recent possession of a mobile phone stolen from the complainant and that he was identified in an identification parade by the complainant. 21.It was the evidence of the complainant that he had worked at the home of the Appellant at Nabobo village for a long time and left their work about 3 years ago. That he was attacked at 6.30 pm and that there was light at the time. The complainant`s son PW4 said that he received a phone call informing him of the assault on his father at 6.30pm. 22.It would then appear that the complainant was attacked at around 6.30 pm. It is trite law that evidence on identification ought to be examined with a lot of care so a to ensure that there is no possibility of error in convicting an accused person on such evidence. In Cleophas Otieno Wamunga v Republic [1989] eKLR the Court of Appeal held thus:It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and 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….Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. 23.Though the complainant said that there was light at the time he was attacked he did not tell the court the source of that light. The court takes judicial notice that there are times of the year when dusk enters by 6.30pm. It was therefore important for the witness to explain whether the sun had set at the time of the attack or whether it was still day light. The charge sheet itself stated that the attack was at “about 8030 hours” – whatever that meant. This means that the time was just an estimate. The trial magistrate did not address the issue of identification in his judgment. He seems to have assumed that the light was from sun light when there was no evidence from the complainant to that effect. In the circumstances of the case, it was the duty of the trial magistrate to satisfy himself that there was enough light that enabled positive identification. The Court of Appeal in the case of Maitanyi v Republic (1986) eKLR held the following on such identification:….. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and its position relative to the suspect. 24.It is also important to note that the complainant did not tell his son PW4 that he had recognized the Appellant as one of the people who had assaulted him. It is his son who went to report at the police station. It is baffling why he did not disclose the name of the Appellant to his son if he had actually identified him. 25.I have also noted from the treatment notes made by the doctor PW4 that the history given to him was that the complainant was assaulted by unknown persons. The doctor PW4 stated as much in his evidence in court and he was not challenged on that evidence. If then that is the history that the complainant gave to the doctor a short period after the assault, when did he come to know that the appellant was one of his assaillants? 26.IP Ongesa testified that he was one of the officers who arrested the Appellant and made recoveries. He said that on getting to the police station he conducted an identification parade in which the complainant picked the Appellant from the parade after identifying him by a missing right foot big toe. 27.The purpose of holding an identification parade is meant to test the correctness of a witness`s evidence on identification of a suspect – see John Mwangi Kamau V republic [2014] eKLR.. It is therefore of utmost importance that identification parades are conducted in compliance with the law. 28.The National Police Service Standing Orders, at Regulation 7 (5) (n) provides the following on how identification parades are to be conducted:…(n) The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified. 29.There is no fairness in the process when an officer who made the arrest and made recoveries turns out to be the same person conducting an identification parade. The same ought to be done by an independent officer who was not involved with the investigations. In any case it is not necessary for an identification parade to be conducted in a case where a witness knows an accused in a long association as in the case of the complainant herein. The evidence on the identification parade was of no evidential value. In view of the foregoing, I find no evidence that the complainant identified the Appellant as one of the people who robbed him. 30.As to the mobile phone said to have been recovered from the Appellant, the trial magistrate believed the evidence of the police officers, PW1, PW2 and PW5 that the same was recovered from the Appellant at the place where they arrested him. There was no reason for the police officers to lie on the issue. I have no reason to differ with the finding. The question is whether the phone belonged to the complainant. 31.The phone is Bontel-L1200 by make. The complainant claimed that it was his but he did not show any identification mark on it that could convince the court that it in fact belonged to him. He said that he handled over its receipt to the police but no such receipt was produced in court. While the trial magistrate acknowledged that the receipt was not produced in court, he held that the Appellant did not lay a claim of right over the phone and therefore that the phone belonged to the complainant. I do not agree with that kind of reasoning. It was the complainant to prove beyond reasonable doubt that the phone belonged to him. He is not the only person who possesses a Bontel-L1200 phone. In the absence of a receipt and an identification mark, there was no sufficient evidence that the phone belonged to him. 32.The upshot is that the case against the Appellant was not proved beyond reasonable doubt. The conviction is thereby quashed and the sentences set aside. I order that the Appellant be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED IN OPEN COURT AT GARSEN THIS 2ND DAY OF JULY 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RepublicAppellant – present virtually at GK Prison MalindiCourt Assistant – Rahma