https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12426

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **HCCRA NO. E029 OF 2024** **BENSON MUTHURI………..........................APPELLANT** **VERSUS** **REPUBLIC ...........................................RESPONDENT** ***(From original conviction and sentence in Criminal Case No. E404 of 2022 of the Principal Magistrate’s Court at Marimanti delivered by Hon. Mbayaki Wafula (PM) on 26th September, 2023.)*** **JUDGEMENT** 1. Benson Muthuri (Appellant) was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars were that on 6th June 2022 at Kirangare sub-location, Tharaka South sub-county within Tharaka Nithi County being armed with a dangerous weapon, namely a rungu robbed Harron Mwenda of (1) cash of Kshs.20,000/=, (2) one mobile phone Make IT-FLY black in colour valued at Kshs.1,500, (3) one Kilogram of rice valued at Ksh.150/-, (4) one and a half kilograms of sugar valuaed at Kshs.200/, (5) one torch valued at Kshs.150/-, (6) one loaf of bread 800g valued at Kshs.50/-, (7) half a kilograme of Kensalt valued at kshs. 50/- and (8) three (3) rolls of tobacco valued at Kshs.100/-, all these items valued at Kshs.22,200/- and immediately after the time of robbery wounded the said Harron Mwenda. 2. The Appellant denied committing the offence and was tried and convicted by Hon. Mbayaki, (P.M) vide judgement dated 26th September 2023. He was sentenced on 17th October 2023 to suffer death as provided by law. 3. Aggrieved by the conviction and sentence, the Appellant appealed on 5 grounds listed in his home made Petition dated 22nd October 2024. I have paraphrased the grounds as follows:- 4. That the Prosecution case was not proved beyond reasonable doubt. 5. That the trial court disregarded his plausible defence without giving reason. 6. That the trial court did not consider his mitigation including the fact that he was a first offender 7. That the conviction be quashed and sentence be set aside. 8. The Appeal proceeded through written submissions as directed by the court. **Appellant’s submissions** 1. The Appellant’s submissions were received in court on 17th July 2025. 2. The gist of the Appellant’s submissions was that the case was not proved. The Appellant urged that the incident occurred at night and other persons may have been involved as the complainant had stated that they met other people on the way. 3. The Appellant further submitted that there was no proof that the items presented by the complainant’s sister to the police were robbed from the complainant as neither the Appellant’s mother who was said to have given the stolen goods to the complainant’s sister nor the complainant’s sister were called to testify. 4. On sentence, the Appellant submitted that the sentence was harsh and excessive contrary to section 25 (a) (c), 26 (i) and 27(1) and (2) of the Constitution. **The Respondent’s submissions** 1. Sub The Respondent filed submissions dated 17th July 2025 and received in court on 21st July 2025. The Respondent raised the following issues for determination. 2. Whether or not the Prosecution proved all he requisite elements of the offences and to the required standard. 3. Whether or not Appellant was properly identified. 4. Whether or not the Prosecution’s case was corroborated. 5. Whether or not the Appellants’ defence was considered. 6. Whether or not the sentence imposed was proper. 7. The Respondent submitted that violence visited upon the complainant was proved by the testimony of the complainant corroborated by the medical evidence given by the clinical officer (PW2). 8. On identification, the Respondent submitted that the trial court duly warned itself and proceeded to find, on the basis of the evidence, that the Appellant was properly identified by the complainant as they had spent ample time together and were also known to each other. 9. With respect to the Appellant’s defence, the Respondent submitted that the court considered and dismissed the Appellant’s defence. With respect to sentence, it was the Appellant’s submission that the sentence was lawful and valid. 10. This is a first appeal. I am therefore conscious of my duty to re-evaluate the evidence and arrive at my own conclusions and findings. This duty was explained in the case of **Gabriel Kamau Njoroge v. Republic [1987] eKLR** as follows:- “**As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due** **allowance in this respect. (See Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570).”** **The Law** 1. The Appellant was charged under section 295 as read with section 296(2) of the Penal Code which provide 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. (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.”** 1. The ingredients of this offence were aptly discussed by **Cockar, C.J., Akiwumi & Shah, JJ.A.** in the case of **Johana Ndungu vs. Republic CRA. 116/1995, [1996] eKLR** where the Court of Appeal in Mombasa stated as follows:- ***“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.”*** (See also **Oluoch vs. Republic [1985] KLR).** **Issues for determination** 1. I have considered the grounds of appeal, the record, and the respective submissions of the parties. The primary issue for my determination is whether the charge was proved beyond reasonable doubt. It follows that my analysis of the evidence must address the following issues which are intrinsically linked to the ingredients of the offence as follows:- 2. Theft of the complainant’s property using violence. 3. Whether the Appellant was armed with a dangerous weapon. 4. Whether the Appellant was in the company of others. 5. Whether the Appellant was properly identified. 6. Whether the sentence was harsh and excessive 7. The Prosecution’s case as laid out by three Prosecution witnesses as follows. The complainant Harron Mwenda (PW1) told the court that on 6th June 2022 he sold his cow for Kshs.20,000/- and on his way home he stopped at Chiakariga market where he bought some groceries including sugar and bread. He also bought a torch and tobacco. That he met the Appellant Benson Muthuri at the market whom he bought tea and Kangumu. 8. They then left together and on their way, the Appellant who was walking behind him hit him on the right side of the neck and also bit his thumb. That the Appellant robbed him of his Ksh.20,000/- and groceries. 9. Clinical officer Kenneth Mutwiri (PW2) testified that he examined the complainant and filed the P3 Form which described the injuries sustained by the complainant including a broken right thumb with a human bite on the thumb base. He classified the injury as maim and produce the P3 From (Exhibit 1). 10. NO. 261793 PC Gilbert Korir was the investigating officer. He summed up the Prosecution evidence and testified that the Accused was arrested on 24th September, 2022 as he had been in hiding from the date of offence being 6th June 2022. **The Defence case** 1. Put on his defence the Appellant raised an alibi that he was away in Machakos between 17th April 2022 where he worked in Makutano Hardware at Yatta Sub-County. That on 6th June 2022 he was still in Machakos Matuu town and not in Marimanti. He stated that the complainant gave a different list of items to the police and gave a different list of quantities in court. That further, the OB indicated the report as having been made on 7th June 2022 while the complainant claimed to have been assaulted on 6th June 2022. He stated that these inconsistencies showed that the charge was fabricated. 2. Cross-examined the Appellant stated that the fabrication arose from a dispute between himself Judith Kiage (Complainant’s sister) and complainant over his bee-hives. 3. At the close of the trial, the trial court found the case proven against the Appellant. He was convicted and sentenced to suffer death. 4. I have already set out the evidence of the complainant (PW1). He stated that he had sold a cow for Kshs.20,000 which he had in his pocket and had also bought some groceries including sugar, rice, bread and salt. He also had his mobile phone and a torch. PW1 testified that he had the money and the groceries when items the Appellant attacked him from the back and he lost all the items. That he took the money and some of the items were given to his (PW1’s) sister by the Appellant’s mother the next day. 5. The Appellant questioned why his mother and the person who is purported to have received the stolen groceries from his mother and taken them to the police were not called as witnesses. 6. I agree with the Appellant that for the groceries there wasn’t sufficient evidence on the chain of custody as none of the two witnesses was called. There wasn’t sufficient evidence therefor that the Appellant lost the groceries items in the robbery. 7. With respect to the money (Kshs.20,000/-) there was evidence that PW1 had sold his cow before meeting the complainant at the market where he also bought him tea and Kangumu. They then walked homewards together. PW1 was walking ahead while the Appellant was walking behind him. Then suddenly PW1 was struck from behind. There was a struggle and assailant bit PW1’s finger and made away with the money and groceries. 8. The Complainant (PW1) went to Marimanti Level 4 hospital and was examined and treated by Clinical Officer Kenneth Mutwiri (PW2) on 20th June 2022 who also filed the P3 Form the same date. PW2 testified that the complainant had a bite mark at the base of his right thumb which he indicated to him was happened while being robbed at Nthaara village. That the neck was still swollen, had tenderness and inability to turn normally. That the injury was 14 days’ old. 9. The Appellant raised questions in cross-examination as to why the victim sought treatment 14 days after the incident. That question also lingers in the mind of this court. It raises suspicion as to why he did not seek treatment the following day or soon thereafter if he truly sustained such serious injuries in the course of the robbery. I would have been prepared to accept that the medical report in the form of the P3 could have been and is sometimes filled long after the treatment but in this case, PW2 the Prosecution’s own witness stated that the patient had not been treated anywhere else. The question is, if the complainant sustained injury in the course of the robbery, what was going on in the two weeks between the date of injury and date of treatment? Might the injures recorded by PW2 have arisen after or from an unrelated cause? 10. It is my finding that while the evidence shows that the complainant sustained injuries, it is as probable and it is not that the same was a result of violence in the robbery. The benefit of such doubt on this aspect of volent injury as the law demands must go to the accused, in this case the Appellant. **Whether the Appellant was armed or in the company of the others.** 1. PW1 testified that they were on their way home with the Appellant alone. He was walking ahead and the Appellant was walking behind him. They had earlier met other people along the way. PW1 was categorical in his evidence that it was only the Appellant who was walking with him. He was categorical that it was the Appellant who robbed him. 2. It is my finding from the above that the Appellant was not in the company of others when he robbed the complainant. They were walking together when he turned against him and robbed him. There was no further evidence that the Appellant was armed with a rungu and used the same to attack the complainant. They had been together all evening and no evidence showed that he was armed. **Whether the Appellant was identified** 1. Evidence of identification must be examined critically to avoid any possibility of mistaken identification. Such evidence must undergo a higher scrutiny if the conditions of identification was unfavourable. In celebrated case of **Republic vs. Turnbull & Others (1976) 3 Aller 549 t**he court drew special attention to questions to be asked when it comes to identification of a perpetrator of the offence a victim. It stated that:- ***“The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before” How often, it only occasionally, had he had any special reason for remembering the accused? How much time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them as his actual appearance.?........ Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” [Emphasis mine]*** 1. In the present case the complainant (PW1) testified that he met the complainant at 7.00 pm and he was robbed about 8.00 pm on their way home. In cross-examination he stated that it was about 8.00 pm. 2. This court notes that the typed proceedings states 3.00 pm. I have however looked at the handwritten proceedings which indicate 8.00 p.m. I take it that 3.00 pm was a typographical error. 3. The complainant’s testimony on the timing was believable. His evidence was that he sold the cow about 4.00 pm and was at the market where he met the accused and bought him tea and Kangumu. The Investigating officer (PW3) stated that his investigations showed that the complainant after selling his cow around 4.00pm, met the accused at Nthaara market near the prison and they partied into the night. 4. It is instructive that the PW1 and the Accused met during the day at around 4 p.m. They sat together taking tea and Kangumu. They knew one another as they were neigbours. Besides the Prosecution’s evidence, the Appellant admitted that they knew one another. He said that “Harron Mwenda is a distant neighbour. My father was his godfather during his initiation.” 5. I am therefore satisfied that the Appellant was very well known to the complainant. That they were together in the evening and were on their way home together when the Appellant robbed the complainant. 6. It is my finding that the Appellant was clearly identified and linked to the robbery. 7. I have considered the Appellant’s defence. He stated that he was away on the material date. He was however unable to demonstrate his *alibi* so as to cast doubt on the Prosecution case. The evidence was clear that he escaped from the locality after the robbery and stayed away upto 26th September 2022 when he returned and was arrested. His defence was not credible and I dismiss it. 8. I have found that the Appellant robbed the complainant. The evidence shows that he was not in the company of others when he committed the robbery. Further, and as analysed earlier in this judgement, there was doubt on the evidence of the Appellant being armed with a dangerous weapon with which he visited on the complainant. 9. The evidence on the whole proves beyond reasonable doubt the lesser charge of simple robbery. **“Section 179 of the Criminal Procedure Code provides:-** **(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”** 1. I substitute the charge and conviction of robbery with violence with that of simple robbery contrary to section 295 as read with section 296(1). The Appellant is convicted accordingly. 2. I set aside the death sentence and substitute an imprisonment term as provided by section 296(1). The Appellant shall serve 14 years’ imprisonment. 3. The sentence shall be deemed to run from 17th October 2023 being the date of his conviction and sentence in the trial court. Orders accordingly. **Judgment delivered, dated and signed at Chuka this 31st day of July, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgment delivered in the presence of the Appellant acting in person. Ms Rukunga for the Respondent, and Muriuki (Court Assistant).**