https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11860

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT EMBU** **(CORAM: R. MWONGO, J.)** **CRIMINAL APPEAL NO. E060 OF 2025** **BERNARD FUNDI ALBERT..……...………………………………………..APPELLANT** **-VERSUS-** **REPUBLIC…………..…………………………………………..…......……RESPONDENT** *(Appeal arising from the decision of Hon. S.K. Ngii in Siakago MCCR E012 of 2024 delivered on 29th May 2024)* **JUDGMENT** **Background** 1. The appellant and one Risper Wambui were charged jointly with others not before the Court with the offence of robbery with violence contrary to 296(2) of the Penal Code. The particulars of the offence are that on 14th November 2022 at Mayori secondary school within Mbeere South sub county in Embu County, the appellant, jointly with others not before court, while armed with dangerous weapons namely panga and a wooden stick, robbed Grace Wanja Gikombo of her television set make Sony S/No.KLV32R422B, television set make Syinix S/No.43T730F, a 13kg gas cylinder make K-Gas and mobile phone make Huawei Y9 2019, all valued at Kshs.106,300/=. At the time of such robbery the appellant and others threatened to use actual violence on the said Grace Wanja Gikombo. 2. The alternative charge was handling stolen goods contrary to section 332(2) of the Penal Code. The particulars were that on 02nd December 2022 at Embu Township in Embu West subcounty within Embu County, otherwise than in the course of stealing dishonestly, the appellant retained a mobile phone Huawei Y9 2019 IMEI No.860926040868080 the property of Grace Wanja Gikombo, knowing or having reasons to believe it was stolen. 3. The second count against the appellant was that of having suspected stolen goods contrary to section 323 of the Penal Code. Particulars were that on 03rd December at Gatirari village within Mbeere South subcounty in Embu County, the appellant, having been detained by PC Christopher Karumba and PC Leonard Ochola, had in his possession two modified power inverters, one grey and one blue and white in colour, one home theatre make Sayona black in colour S/No.SHT1204BT, one 6kg Pro gas cylinder and one TATA green battery reasonably suspected to have been stolen or unlawfully obtained. 4. The appellant pleaded not guilty to the charges and the matter went to full hearing. He was found guilty of robbery with violence but not guilty of having suspected stolen goods. He was convicted and sentenced to death, it being noted that he was a previous offender. **The Petition of Appeal** 1. Dissatisfied with the judgment, the appellant filed a petition of appeal dated 03rd March 2025 seeking for orders that the appeal be allowed, the conviction be quashed, the death sentence imposed be set aside and the appellant be set at liberty. The appeal is premised on the following grounds: 1. That the learned trial magistrate erred in law and facts by failing to take into account that the ingredients of identification were marred by doubt; 2. That the learned trial magistrate erred in law and facts by failing to consider that the said inventory was a discrimination of power of the police and prosecution; 3. That the learned trial magistrate erred in law and facts by failing to note that the complainant stated that he did not know the thieves at the scene of crime; 4. That the learned trial magistrate erred in law and facts by failing to consider that the death sentence imposed is contradictory in the circumstances of the crime committed; and 5. That the learned trial magistrate erred in law and facts by failing to put into account that the police refused the 2nd accused to take them to the one that sold him the alleged phone. **Summary of the Evidence in the trial Court.** 1. PW1 was Grace Wanja Gikombo. She stated that the she was with a family in their house which is within the school compound, when she woke up at night to use the bathroom. She used a torch because there was no power that day. As she was returning to sleep, she noticed the doors within the house were open. She went to check and then she noticed that the main doors of the house were also open. Further, she noticed that some things were missing from the house. As she flashed her torch, she saw 3 people, one of whom was armed with a panga and a wooden stick standing by the main entrance doorway. They signaled her not to make any noise. She returned to her bedroom to call her husband. 2. Thereafter, PW1 and her family raised alarm and neighbours came to the scene. The matter was reported to the police. She identified the lost items to the police. Later, she was called by DCI officers and informed that a mobile phone, which was part of the stolen items had been traced and recovered. She could not identify the suspects and she could not tell which one of the 3 was armed with a panga and wooden stick that night. 3. On cross-examination, she stated that on the material night, she found the door open but there was no one inside the house; they were outside. She did not recognize any of the people who were outside the house at the door, neither could she tell whether they were male or female. She stated that the stolen mobile phone was recovered in Embu town in the custody of a certain boy. 4. PW2 was Paul Muriithi Machaki, PW1’s husband. He stated that on the night of the incident, PW1 had stepped outside the bedroom to use the bathroom and she returned to the bedroom while screaming because some people had broken into their house. He called some neighbours who gathered outside. He noticed that some things were missing from the house. He stated that the previous night, he had personally checked to ensure that the main doors and service door within the house were locked. 5. They called Kiritiri Police Station for assistance, and identified the stolen items which included 2 television sets, a gas cylinder and a mobile phone. Their woofer system was found outside the house that night. They recorded statements at the police station the following morning. On 13th December, 2024, they were called by the DCI officers who said that they had managed to track and trace the stolen mobile phone. He identified it and subsequently, it was produced as evidence. 6. On cross-examination, she stated that the doors leading into the house were locked with padlocks and he did not know how the thieves gained access. He stated that he had bought the lost mobile phone for his wife as a gift, and that is why she did not know its price. He was not present when the phone was recovered. 7. PW3 was PC Leonard Ochola of DCI Embu West who stated that while on patrol, his colleagues informed him about a motor vehicle registration number KCL 723P which was suspected of being used in criminal activities in Kirinyaga, Embu and Mbeere. He and his colleagues intercepted the vehicle, which was being driven by the appellant, and it was searched by PC Karumba at the police station. In the vehicle, the stolen mobile phone and simcards among other things were recovered. 8. The items named in the charge sheet were recovered from the appellant’s house and he signed an inventory for them. The mobile phone was tracked and traced and it was identified as the one stolen from the home of PW1. On cross-examination, he stated that the appellant was arrested along Embu-Meru Road following intelligence that the vehicle he was driving was flagged for involvement in criminal activities. Upon arrest, the vehicle was driven to the police station by PC Karumba. It was not possible to search the vehicle at the scene because a crowd had started gathering there. 9. He stated that the stolen mobile phone was retrieved from the appellant’s trouser pocket. That when the owner of the phone was traced, she told police that she had been robbed. That after arresting the appellant, he took them to a home where the people identified themselves as the appellants wife and father. He stated that the house had new household items but the appellant could not prove ownership of these items. At the time of his testimony, no one had claimed the items recovered from the appellant’s home. It was later discovered that the motor vehicle did not belong to him as it was hired. 10. PW4 was PC Christopher Karumba. He testified that he was with PW3 when they intercepted and flagged motor vehicle registration number KCG 703P which was suspected of involvement in criminal activities. It was being driven by the appellant. They searched it briefly before taking it to Embu Police Station where a further search was conducted led by him. He listed the items that were recovered from the motor vehicle. Among them was a Huawei phone which the appellant claimed belonged to his wife. He sought the assistance of the Crime Research Bureau and established that the phone was registered to PW2 and the case was handed over to the assigned investigating officer. 11. The appellant signed an inventory for all the items named in the charge sheet which were recovered in the car and in his home. On cross-examination, PW4 stated that the motor vehicle was intercepted at Embu town near Ilade petrol station where a quick search was done. He, the witness, drove the vehicle to Embu Police station where a further search was conducted and photos taken. Some items were taken from the appellant’s home but they had not been claimed by anyone. 12. PW5 was CPL Abdi Mahati, the investigating officer. He testified that he was at the police station when the OCS called him about the incident at PW1’s home. He visited the scene and PW1 narrated the incident to him, naming the items that had been taken away from the house. Later, DCI officers intercepted a vehicle which was suspected to have been used in criminal activities. After searching it, a phone that was taken from PW1’s house was found with the appellant who was driving the car. 13. On cross-examination, PW5 stated that when he visited the scene, at first, it looked like a burglary but when he interrogated the witnesses, he established it to be a case of robbery with violence. At the scene, he established that the robbers accessed the complainant’s house through the kitchen. He stated that the appellant was implicated because he took the police to the other place where other items suspected to have been stolen were recovered. 14. DW1 was the appellant. He stated that he was called by his co-accused who asked him to help her take a sick child to the hospital using his car. He picked them, took them to hospital where the child was treated and then he took them back home, his co-accused promising to send him some money later on. When he was on the way back to town, he was stopped by police men in plain clothes who arrested him and took him to the police station in his vehicle. Upon searching the vehicle, a mobile phone was found and he told them that it belonged to his co-accused. He took them to where she was and she explained where she got the phone. The police were also taken to his house where they took the household items. He could not produce receipts for them. **Parties’ Submissions on Appeal** 1. In his submissions, the appellant stated that the prosecution’s witnesses gave testimony that was false and should not have been used to convict him. That the items confiscated by the police from his house belonged to him and were not stolen. That going by the evidence of the prosecution’s key witness, PW1, she could not identify the people she saw at her doorway that night. This amounts to reasonable doubt, and should have been found as such by the trial court. He stated that the phone was found with his wife’s simcard, hence it was not in his possession. Since he had just carried his co-accused in his car moments before he was arrested, it was possible that she had left the phone in his car where it was found. He urged the court to find that the offence was not proved beyond reasonable doubt. 2. In its submissions, the respondent placed reliance on section 296(2) of the Penal Code and the cases of **Nguu v Republic [2025] KEHC 9555 (KLR), Oluoch v. Republic [1985] KLR** and **Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007**for the elements of the offence. It stated that it is enough to convict if one of the 3 elements of the offence is proved. It was the respondent’s submission that on the night of the incident, PW1 had a torch which she had pointed at the people she saw at her house. 3. It was further submitted that the lost mobile phone was found in the vehicle that was being driven by the appellant hence the doctrine of recent possession applies. The respondent stated that whatever contradictions were found in the evidence were not substantial, and incapable of changing the findings of the trial court. On this, it relied on the case of **MTG v Republic [2022] KEHC 189 (KLR)**. The respondent also relied on the case of **Bernard Kimani Gacheru v Republic [2002] KECA 94 (KLR)** to support its assertion that the sentence imposed should be upheld **Issues for Determination** 1. From the grounds of appeal and the submissions made, the issues for determination are as follows; 1. Whether the offence was proved beyond reasonable doubt; 2. Whether the death sentence should be reviewed. **Analysis and Determination** 1. This court’s duty on an appeal is to re-examine afresh the evidence on record from the trial court and reach its finding. This was stated in the case of **Kiilu & Another vs. Republic [2005]1 KLR 174**, where the Court of Appeal held: “***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 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 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***.” 1. On the issue of whether the offence was proved beyond reasonable doubt, the elements of the offence are provided for under section 296(2) of the Penal Code which provides: “***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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death***.” ***(Emphasis added)*** 1. In the case of **Charles Mwai Kimani v Republic [2022] KEHC 1459 (KLR)**the court cited the case of **Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR)**where the Learned Judge elaborated on the offence of robbery with violence as follows: “***Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.*** ***On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -*** ***i. The offender is armed with any dangerous or offensive weapon or instrument, or*** ***ii. The offender is in the company of one or more other person or persons, or*** ***iii. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person***” ***(Emphasis added)*** 1. Given the wording of the provision, if any of these elements is proved to the required standard, the appellant will be found culpable. This was the position of the court in the case of **Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR)**where the court stated: “***The elements of the offence under Section 296 (2) are, however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction. This was considered at length by this Court in Johana Ndungu v. Republic Criminal Appeal No. 116 of 1995 (unreported);*** ***“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 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 properly at 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 section 296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section***.”” ***(Emphasis added)*** 1. PW1 is the key witness for the prosecution. She stated that when she noticed that the doors to her house were open, she shone her torch at the doorway. That is when she saw 3 people, one being armed with a wooden stick and a panga. At that moment, they signaled her to stay quiet, and she ran back to her bedroom to call her husband. She stated in her evidence that she did not see which of the people was carrying the wooden stick and a panga. She also couldn’t tell whether there was a woman among the 3 people. In fact, she could not identify any of the accused persons in court as the people she saw that night. None of the other witnesses actually saw the appellant that night. 2. PW3 and PW4 intercepted the vehicle that was being driven by the appellant where they recovered a mobile phone which was among the things lost by PW1. The appellant claimed that the phone belonged to his wife, who was his co-accused at the trial court. PW4 stated that investigations revealed that the simcards in the recovered phone were registered in the name of the appellant’s co-accused, but the phone was found near the gear lever in the car he was driving. In his defense, the appellant stated that on the day he was arrested, he had taken his co-accused, Risper Wambui, to the hospital and then took her back home. That it was possible that she had left the phone inside the car. 3. The appellant’s co-accused is not a party to this appeal. However, her testimony, which forms part of the record of appeal, gives perspective to the court on the issue of the phone. As DW2, Risper Wambui Karanja stated that she, indeed had the Huawei phone that day. That she had gotten the phone from another person whom she introduced to the police and they took her statement. She had bought the phone from this other person. 4. It is noted that the inventory of all the other times recovered at the home of the appellant or his co-accused were not the items taken from the complainant’s home. In fact, PW3 and PW4 stated that the items taken from the appellant’s home were never claimed by any other person from the time they were taken away by police. 5. From the totality of the evidence on record, it is clear that there were people who invaded that complainant’s home; and that they stole some items including a Huawei phone. One of the robbers was armed with a panga and a wooden stick. However, the eye witness (PW1) could not identify the appellant as one of the aggressors. Further, even though PW3 and PW4 found a Huawei phone which was same one taken from the complainant’s home, considering the appellant’s defense and that of his co-accused, there is doubt as to the appellant’s actual involvement in the robbery with violence. 6. The fact that the stolen phone was found in the appellant’s possession proves the second count, which is that of having suspected stolen goods contrary to section 323 of the Penal Code. It was upon this count, that the appellant should have been convicted and sentenced. Section 323 of the Penal Code provides: ***“Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any*** ***manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour.”*** 1. This provision categorizes the offence as a midemeanor but it does not prescribe a punishment for it. However, section 36 of the Penal Code provides: “***When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both***.” **Disposition** 1. On the basis of the evidence available, I find that the conviction of the appellant on the first count is unsafe. It should be, and is hereby, set aside. Similarly, the Death sentence imposed must also be set aside as it hereby is. 2. In place thereof, the appellant is hereby convicted of the second count of having suspected stolen goods and sentenced to 2 years imprisonment. Time spent in custody shall be considered and deducted from this sentence term in accordance with section 333(2) of the Criminal Procedure Code. 3. It is noted that the appellant has been serving a death sentence imposed following conviction on 01/07/2024 in Runyenjes MCCR E011 of 2023 which is over 2 years ago. 4. Accordingly, and given that the maximum sentence period under Section 36 PC has been served, and given further that remission has not been accorded the appellant, this court is satisfied that he has served a sentence period greater than the due sentence. Accordingly, the appellant shall be deemed to have completed his sentence and is hereby set at liberty forthwith unless he is otherwise lawfully held. 5. Orders accordingly. **Delivered, dated and signed at Embu High Court this 29th day of July, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. MWONGO** **JUDGE** **Delivered in the presence of:** 1. Appellant Present in Court 2. Ms. Mwaniki for the Respondent 3. Francis Munyao - Court Assistant