https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1357

Michuki v Republic (Criminal Appeal 14 of 2017) [2026] KECA 1357 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1357 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 14 of 2017 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Charles Kimathi Michuki Appellant and Republic Respondent (An appeal from the conviction and sentence of the High Court of Kenya at Meru (Kiarie, J.) dated 20th December 2016 in HCCRA No. 67 of 2012) Judgment 1.Charles Kimathi Michuki, the appellant herein, is before this Court by way of a second appeal, his first appeal having been dismissed by the High Court (Kiarie, J.) on 20th December 2016. 2.The appellant had been charged before the Principal Magistrate’s Court in Tigania with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that, on 15th September 2010, at Amatu Village in Meru County within the Eastern Province, jointly with others not before court, he robbed Maurice Gituma Chabari of a motorcycle registration No. KMCJ 846H, valued at Ksh. 82,000/- and cash of Kshs. 2500/- and immediately before the time of such robbery, he threatened to use actual violence on the said Maurice Gituma Chabari. 3.The appellant pleaded not guilty to the charge, and the matter proceeded to trial, where the prosecution called 7 witnesses. At the close of the prosecution's case, the appellant was found to have a case to answer and was placed on his defence. Upon considering the evidence, the trial magistrate convicted the appellant of the offence of robbery with violence and sentenced him to the death penalty. Dissatisfied with the verdict, the appellant appealed to the High Court, which dismissed the appeal, affirmed the conviction, and upheld the sentence. 4.The judgment of the High Court precipitated this appeal. Before addressing the grounds of appeal raised by the appellant, we will summarise the evidence presented in the trial court. 5.Maurice Gituma Chabari (PW1), a boda boda operator, testified that on 15th September 2010 at around 3:30 pm, the appellant hired him allegedly to collect some items. On the way, the appellant asked him to stop the motorcycle. Suddenly, three people appeared; one of them took the key to the motorcycle, and another held him by the neck, and a struggle ensued as he fought them off. He freed himself. There were two attempts to cut him with a panga, but they missed. On the third attempt, they tore the clothes he was wearing, prompting him to run away while screaming, when women from a nearby Seventh-Day Adventist (SDA) Church came to his rescue. Meanwhile, the appellant and one of the other attackers sped away with his coat, which contained Kshs. 2,500. 6.He reported the matter at Mikinduri Police Station and later returned to the scene of the crime with police officers and the owner of the motorcycle, who had received information of the robbery. They then proceeded to Kigucwa to search for the motorcycle and continued to an area called Kabondi. At 10:00 pm, a woman approached PW1 and the police officers and informed them that a motorcycle had been left at her house. They went to the woman’s homestead and found the motorcycle. The woman explained that two people visited her, inquiring about Miraa, and requested to leave the motorcycle while they went to fetch transport to pick up the Miraa. The police officers took the motorcycle to the police station.He further testified that he was known to the appellant, as they had played football together at Mikinduri. 7.Ezra Murimi Chabari (PW2) testified that on 15th September 2010 at 4:00 pm, while at Mulika boda boda stop, the appellant hired his employee (PW1) to take him to Mikinduri. Later, a fellow boda boda operator named Mili called him to inform him that a motorcycle from the Mulika area, registration number KMCJ 846H, had been stolen. Mili asked PW2 to find out who owned the motorcycle, and PW2 immediately recognised it as his own. He quickly took another motorcycle and rushed to Mikinduri. Upon reaching Mikinduri SDA Church, PW2 learned that the rider of the stolen motorcycle had gone to the police station to report. 8.He proceeded to Mikinduri and was not able to trace the motorbike, and he proceeded to Mikinduri Police Station, where he found PW1 reporting the incident. Two police officers accompanied them back to Kabondi, where they began a house- to-house search. Later, an elderly lady approached them and informed them that two young men had gone to her home, looking to buy Miraa. And they requested her to watch over their motorcycle while they went to Mikinduri to get money to pay for the Miraa. 9.They proceeded to the lady’s homestead and found the motorcycle. The police officers took the motorcycle back to Mikinduri Police Station. Although the motorcycle's logbook had not yet been issued, the receipt was found in a jacket stolen along with the motorcycle. PW2 also testified that he was very familiar with the appellant, who used to be seen around the Mikinduri boda boda stop. Thereafter, the appellant was arrested by members of the public at Mikinduri market, in collaboration with the police officers. 10.PC Humprey Kosgey (PW3), the arresting officer, testified that on 15th September 2010 at 5:00 pm, he was patrolling along Mikinduri-Kigucwa road with a colleague. They met PW2, who informed them that PW1 had been robbed of a motorcycle and that it had been seen in the Kabondi area. The officers rushed to the area and began a house-to-house search. PW4 came forward and told them that there was a motorcycle at her home. They went to the home, where they found the motorcycle registration No. KMCJ 846H. PW2 positively identified it as his, after which they took the motorcycle to the police station. 11.PW3 testified further that on 18th September 2010, a good Samaritan called the police station to report that the suspect had been arrested by members of the public. PW4, the OCS Chief Inspector Muthua, along with PC Okoth and PC Mutie, proceeded to Mikinduri market and re-arrested the appellant. The appellant was taken to the police station and later charged with the offence. 12.Victoria Karethi (PW4) testified that on 15th September 2010 at 5:45 pm, two persons, one of whom was the appellant, went to her house to purchase Miraa. They negotiated a price of Ksh. 30,000/= after which they excused themselves to go get the money from a nearby canteen, leaving their motorcycle behind. When they had not returned by 7:00 pm, she heard that villagers and police were looking for a stolen motorcycle. She informed the search party, which included police officers, of the motorcycle at her home. They positively identified it as the stolen motorcycle. The police then asked PW4 to accompany them to the police station to record her statement. The motorcycle was red in colour with registration No. KMCJ 846H. 13.Josephine Karimi (PW5) testified that on 15th September 2010 at 3:45 pm, she was headed to church with several other women. As they arrived at the church gate, they found people seated nearby, and upon entering the church, they heard screams. They rushed outside. She saw the appellant, accompanied by another person, speeding off on a motorcycle while the owner chased after them on foot. One of the women called their colleagues at the bus stop to alert them about the stolen motorcycle. PW5 and the other women went back into the church. Later, the motorcycle owner returned with police officers who interrogated them. PW5 testified that the motorcycle was red. She had known the appellant since childhood. 14.Mary Kinya (PW6) testified that on 15th September 2010 at 5:00 pm, she was at the church in the company of about 10 others for prayers, when they heard screams outside. They rushed out and found a motorcyclist being beaten by two men. The two men then boarded the red motorcycle and sped off, while the motorcycle's owner chased after them on foot. Another motorcycle soon came along and offered the owner a lift as they pursued the robbers. Later, the police, accompanied by the motorcycle owner, returned to the scene and interrogated PW6 and the other women. One of PW5’s colleagues had called a boda boda operator who was near the bus stage to alert them about the robbery so that they could intercept the motorcycle. PW6 recorded her statement at the Mikinduri Police Station. The motorcycle was recovered in Kamunda. She also had known the appellant since childhood. 15.Cpl. Harun Kimathai (PW7) testified that he received a report from the complainant, who stated that he had been hired by a passenger to take him from Mulika to Mikinduri town. On their way, the passenger ordered him to stop, and three individuals emerged from the bush armed with swords and simis. They robbed him of cash and his motorcycle, KMCJ 846H Blaze, which was red in colour. PW7 accompanied PW1 to the scene near SDA Church and interrogated some women who had witnessed the robbery. 16.After returning to the police station, PW7 recorded PW1's statement. Later, he received a tip-off that the motorcycle had been sighted in Ndii area. The motorcycle was recovered, and the complainant positively identified it. On 18th September 2011, the OCS Mikinduri and IP Isaac Mutua arrested the appellant after he was identified as one of the robbers. PW5 and PW6 positively identified the appellant as one of the robbers who attacked PW1. 17.When given the opportunity to defend himself, the appellant (DW1) elected to give sworn evidence. He denied robbing the appellant. He contended that since PW1 alleged he knew him, he should have provided the police with his name and/or description. He claimed to have been framed after a disagreement with PW6 over money she owed him for furniture he had supplied. He alleged that PW6 conspired with her husband to instigate his arrest. He testified further that he was beaten by a group before the police rescued him from being lynched on the allegation of having stolen a motorcycle. 18.In its determination, the trial court found that the incident happened in broad daylight, which provided favourable conditions for seeing and recognising the appellant. The court also found that the identification of the appellant in the dock as a member of the gang that robbed PW1 of his motorcycle could be safely accepted as free from the possibility of error. Further, it was noted that the appellant was identified as the person who had hired PW1 to transport him, was joined by his accomplices in robbing PW1 of the motorcycle and fleeing on it, and later abandoned the same at PW4's home the same evening. The court concluded that he was actively involved in the crime.The trial court found the appellant’s defence was false and an afterthought designed to mislead the court. 19.Aggrieved by the conviction and sentence, the appellant lodged a first appeal in the High Court, which was heard by Kiarie, J. In the judgment dated 20th December 2016, the learned Judge held that the appellant was in the company of more than one armed person and threatened to use actual violence, thereby falling within the purview of section 296(2) of the Penal Code.The court held that the prosecution's case against the appellant was watertight. He upheld both the conviction and the sentence, thereby precipitating this second appeal. 20.In an undated grounds of appeal, the appellant faulted the Judge for failing to note that the charge sheet was defective; the complainant did not give the name of the appellant during the first report at the police station; no identification parade was conducted; rejecting the appellant’s defence and passing a harsh sentence. 21.The matter was heard on the Court’s virtual platform. Learned counsel for the appellant, Mr Mshilla Tsuma, filed submissions dated 6th May 2025, which he briefly highlighted. Learned Prosecuting Counsel appeared for the respondent and made oral submissions. 22.On the defective charge sheet, counsel for the appellant submits that it was defective for failing to specifically state all the essential elements of the offence of robbery with violence under section 296(2) of the Penal Code. The particulars of the offence were vague and did not outline which of the statutory elements were being relied on. Whether the appellant was armed with a dangerous weapon, in the company of others, or used actual violence. In support of this contention, counsel cited Jason Akumu Yongo vs. Republic [1983] KECA 79 (KLR), where the Court emphasised that a charge sheet must contain sufficient detail to enable the accused to understand the nature of the offence facing him. A defective charge sheet renders the trial a nullity and the resulting conviction unsafe. 23.Counsel submits further that the judgment violated section 169(1) of the Criminal Procedure Code, which mandates that every judgment must contain the points for determination, the decision thereon, and the reasons for the decision. He argues that the trial magistrate failed to articulate the specific legal and factual issues he considered, thereby making it impossible to appreciate how the court arrived at its verdict. Counsel argues further that this procedural omission not only offends the law but also prejudices the right of the appellant to a reasoned and just determination. 24.On the issue of identification, counsel contends that proper identification is the cornerstone of a conviction for robbery with violence. In the instant case, the appellant was not subjected to an identification procedure. There was no identification parade, and the lighting conditions at the scene were not clearly described. Furthermore, the complainant did not give the appellant’s name in the initial report to the police, which raises serious doubts as to whether he had indeed identified the appellant during or shortly after the alleged incident. Counsel relies on Wamunga vs. Republic [1989] (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR), where the Court held that where the only evidence against a defendant is identification, that evidence must be absolutely watertight to justify a conviction. Counsel submits that the appellant was subjected to dock identification, which was vague and uncorroborated, thus rendering it wholly unreliable. 25.On the issue of contradictory testimony of the prosecution witnesses, counsel submits that a critical examination of the prosecution's case reveals numerous material contradictions. Such as key witnesses giving inconsistent accounts regarding the number of attackers, weapons used, the sequence and timing of events and the arrest and recovery of the motorcycle. Further, these contradictions were not resolved by the trial court, and the High Court failed in its duty to re-evaluate the evidence afresh. In support of this contention, counsel relied on Ndungu Kimanyi vs Republic [1979] [1979] KECA 5 (KLR), where the Court held that a witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person. Counsel submits that the inconsistencies strike at the heart of the credibility of the prosecution’s case. 26.Counsel also submits that the prosecution failed to call material witnesses, including the arresting officers and other potential eyewitnesses. Their absence was unexplained, and the available evidence failed to corroborate the complainant's testimony. Counsel urged in this regard that the court is entitled to draw an adverse inference where such witnesses are not availed without justification. 27.On failure to consider the defence, counsel contends that the appellant raised a defence of alibi, which was dismissed without any effort to test its veracity or consider whether it raised reasonable doubt. Counsel submits that the burden of disproving an alibi rests squarely on the prosecution and not the accused and, in support, relies on Kiarie vs Republic [1984] KECA 65 (KLR), where the Court held that the burden to disprove an alibi does not lie on the accused. The prosecution must prove the alibi is false. Counsel argues that this was not done, and the appellant’s defence was unfairly disregarded. 28.In urging that the sentence is excessive and unjust, counsel relied on Muruatetu & Another vs. Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) and William Okungu Kittiny vs. Republic [2018] (Criminal Appeal 56 of 2013) [2018] KECA 851 (KLR), where this Court applied the Muruatetu decision to a case of robbery with violence. 29.In his oral submissions, Learned Prosecuting Counsel submitted that the first appellate court discharged its duty; he urged that the judge re-evaluate the entire evidence on record in arriving at his decision. On the charge sheet, he submitted that even if the same is defective, which it is not, Section 382 of the Criminal Procedure Code would cure the error or defect insofar as it has not caused any injustice to the appellant. On alleged contradictions and insufficiency in the prosecution's evidence, he submitted that there were no contradictions and that the prosecution's case was watertight. On the issue of identification, counsel submitted that the incident occurred in broad daylight; at 3.30 pm, further, the appellant was known to PW1, PW5, & PW6, and therefore there was no possibility of mistaken identity. On whether the judgment violated section 169 of the Criminal Procedure Code, he urged that the judgment of the first appellant court complied with the requirements of the section. On the issue of witnesses, counsel contends that the prosecution calls only the witnesses it deems necessary in support of its case, and draws the attention of the Court to PW7, who was the arresting officer, contrary to the appellant's allegation that he was not called as a witness. On sentencing, he urged Muruatetu II to tie the Court’s hands, and this Court ought not to entertain the question of resentencing at this stage. 30.Having duly considered the record, the appellant’s grounds of appeal, and submissions, we are minded of our mandate, this being a second appeal, which is restricted to addressing ourselves to matters of law only as provided in section 361 of the Criminal Procedure Code. Further, we remind ourselves that the Court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are not based on evidence, or they are based on a misapprehension of the evidence, or the courts below acted on wrong principles in making the findings. 31.In Karingo vs. Republic [1982] KECA 23 (KLR) this Court stated as follows:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did. (Reuben Karari s/o Karanja v Republic (1950) 17 EACA 146).” 32.From the outset, we must point out that the issue of the charge sheet being defective was neither raised at the trial court nor in the High Court. Neither was the issue of crucial witnesses being left out. As a general rule, a party cannot raise a new issue or argument on a second appeal if it was not brought up at the original trial or the first appeal. The two courts below did not make an opinion on the two issues, and the same cannot therefore be raised for consideration at this late stage. The Court in AT vs. Republic (Criminal Appeal 63 of 2022) [2023] KECA 1393 (KLR) (24 November 2023) (Judgment), faced with a similar situation, stated:“The reason why this Court shies away from interfering with decisions of the trial court or the first appellate court on matters not raised before the said courts is that this Court deals with the appellant’s grievances based on allegations of errors of omission or commission committed by the said courts. Where the issues being raised are not matters which were placed before the lower courts and therefore the said courts did not address their minds to them, it would be improper to interfere with their decisions when they had no chance of dealing with the same and no finding was made in respect thereof.” 33.Therefore, the issues that arise for determination are:a.Whether the prosecution proved the case beyond a reasonable doubt in light of contradictions and inconsistencies;b.Whether the identification of the appellant was free from error;c.Whether the appellant’s defence was properly considered.d.Whether the sentence meted out was lawful. 34.The appellant’s main complaint relates to contradictions and inconsistencies in the prosecution’s case. A careful re-evaluation of the record reveals that PW1 stated the stolen motorcycle bore the registration No. KCH 846H, while PW2 stated that it was KMCJ 846H. PW1 said three people emerged from the bush and attacked him; PW6 stated that she saw two men beating the motorcyclist, while PW5 stated that she only saw the appellant and one other person riding away. As regards the weapon used, PW1 stated that the attackers tried to cut him with a panga; PW7 stated that the attackers were armed with “swords and simis”, while PW5 & PW6 made no mention of any weapons at all. As regards the location where the motorcycle was recovered, PW1, PW2, PW3, and PW4 all stated that the motorcycle was recovered at PW4’s home (Kabondi area). PW6 stated that it was recovered in Kamunda, while PW7 stated that it was recovered in the Ndii area. As regards the time the incident took place, PW1 stated that the robbery occurred at 3:30 pm. PW2 stated that the events were unfolding around 4:00 pm, whereas PW3 stated that he was already patrolling at around 5:00 pm. PW4 stated that the suspects arrived at her home at 5:45 pm. 35.These inconsistencies were neither reconciled by the trial court nor re-evaluated by the High Court. In Richard Munene vs. Republic [2018] KECA 186 (KLR), this Court reiterated that any doubt arising from inconsistencies must be resolved in favour of the accused. This Court held that:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 36.In our view, the contradictions in this case were not minor. They went to the core of the prosecution case and rendered the evidence unreliable. Both courts below erred in treating them as immaterial. 37.Conviction of the appellant was largely based on alleged recognition by the witnesses. In Esekun vs. Republic (Criminal Appeal 21 of 2019) [2025] KECA 1562 (KLR), this Court held that:“The conditions prevailing at the time of the alleged identification were admittedly difficult - at night, during a violent encounter, and under extreme stress. The failure to provide an initial description, coupled with the absence of an identification parade, fatally undermined the reliability of the purported identification. In those circumstances, we are unable to hold that the identification was free from the possibility of error. Where the identification evidence is not fool-proof, a conviction based on it cannot be sustained.” 38.The alleged recognition came after the arrest of the appellant by members of the public. In his evidence before the trial court, PW1 testified that he had known the appellant for a long time and had played football together at Mikinduri. It beats logic why he did not immediately inform the police of the appellant’s name or description. In George Bundi M’rimberia vs. Republic [2007] KECA 310 (KLR), this Court stressed that failure to mention a suspect in the first report weakens subsequent identification. 39.It is not disputed that the motorcycle was recovered. However, the critical question is whether that recovery linked the appellant to the robbery. The doctrine of recent possession would only apply if the property was found in possession of the appellant and the possession was unexplained. In Arum vs. Republic [2006 (Criminal Appeal 85 of 2005) [2006] KECA 385 (KLR), this Court found that for the doctrine to apply, possession must be positively proved. The Court held that:“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.” 40.In the instant case, the motorcycle was recovered at PW4’s home; it was allegedly left there by two persons, and from the analysis above, the evidence linking the appellant to the robbery is shaky, inconsistent and contradictory and not safe to found a conviction. 41.In Republic vs. Aduol alias Bonny & 4 Others (Criminal Appeal 189 of 2020) [2026] KECA 155 (KLR), the Court relied on Okeno vs. Republic [1972] EA 32, where it was held that the first appellate court has a duty to re-evaluate evidence and draw its own conclusions. The appellant raised a defence suggesting a frame-up arising from a dispute. The trial court dismissed the defence as a mere denial without proper evaluation. In Kiarie vs. Republic [1984] KECA 65 (KLR), this Court held that the burden remains on the prosecution to disprove a defence such as alibi or denial. 42.The first appellate court failed in its duty to re-evaluate the defence and instead simply affirmed the trial court’s decision. In the circumstances, we find that the appellant’s defence was not properly considered, and this occasioned a miscarriage of justice. 43.This being a second appeal, we are alive to the limitation under section 361 of the Criminal Procedure Code. However, where findings of fact are based on no evidence, misapprehensions of evidence, or wrong principles, this Court is entitled to interfere. 44.We find the prosecution case was riddled with material contradictions, the identification of the appellant as one of the robbers was unsafe, the recovery did not connect the appellant to the offence, and the defence was not properly considered. These deficiencies created reasonable doubt, which ought to have been resolved in favour of the appellant. 45.Accordingly, we find merit in the appeal; as a result, the conviction is quashed and the sentence set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI.....................................JUDGE OF APPEALJ. LESIIT.....................................JUDGE OF APPEAL ALI-ARONI....................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar