https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9180

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CRIMINAL APPEAL NO. E012 OF 2025** **CHRISTOPHER KALUNDA NJOKI .................................APPELLANT** **VERSUS** **REPUBLIC ............................................................................RESPONDENT** *(Being an Appeal from the Judgment of Hon. M.K Mutegi (PM) in Kangema Criminal Case No. E346 of 2024 delivered on 09th January, 2025)* **JUDGMENT** 1. The Appellant was charged alongside one other person with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the charge were that on the 15th day of May 2024 at around 11:30 am at Delax Entertainment in Gakira Sub-location, Mugumo Location in Kangema Sub-County within Murang’a County, jointly being armed with dangerous weapons namely a panga and knives, robbed Stephen Mwangi Kago of his three play station machines and three FIFA 24 play game machines all valued at ksh. 160,500.00 and immediately before or immediately after the time of such robbery, threatened to harm the said Stephen Mutugi Kago. 2. He was convicted and sentenced to serve a prison term of 15 years. Aggrieved by both the conviction and sentence, he has proffered this appeal. **Petition of Appeal** 1. The Appellant, through his amended petition dated 16th January 2026, raised the following grounds: 2. *THAT, the learned trial magistrate erred in law by proceeding with the trial without ensuring that the Appellant was provided with legal representation as required by law thereby violating the Appellant’s constitutional right to a fair trial.* 3. *THAT, the learned trial magistrate erred in law by failing to inform the Appellant of his right to legal representation by an advocate of his own choice or by one availed to him by the court given that the offence of robbery with violence is a capital offence which carries a severe penalty where lack of legal representation would otherwise occasion to an injustice.* 4. *THAT, the learned trial magistrate erred in fact and law in finding that the prosecution had proved its case beyond reasonable doubt.* 5. *THAT, the learned trial magistrate erred in law and in fact in convicting the Appellant when the evidence on record could not sustain a conviction against the Appellant.* 6. *THAT, the learned trial magistrate erred in law and fact by ignoring the glaring discrepancies in the prosecution’s evidence and/or lack of it therein and thus convicting the Appellant on inconclusive evidence.* 7. *THAT, the learned trial magistrate erred in law and fact in not putting into consideration that no identification parade was conducted for proper identification as required in law.* 8. *THAT, the learned trial magistrate erred in law and fact by failing to consider that the prosecution’s evidence particularly on identification was never availed and shifted the onus of proof to the Appellant.* 9. *THAT, the learned trial magistrate erred in law and fact in negating the fact that the complainant’s testimony was neither corroborated nor was there evidence produced linking the Appellant to the offence of robbery with violence.* 10. *THAT, the learned trial magistrate erred in law by imposing a sentence not prescribed by law for the offence of robbery with violence contrary to Section 296(2) of the Penal Code thereby rendering the sentence illegal.* 11. *THAT, the learned trial magistrate failed to properly consider and apply the relevant statutory provisions and acted without jurisdiction by purporting to impose a sentence outside the statutory framework governing robbery with violence leading to a miscarriage of justice.* 12. *THAT, the learned trial magistrate erred in law by imposing an excessive, harsh and/or unconstitutional sentence considering the applicable law and prevailing judicial principles.* 13. *That the conviction and sentence taken as a whole are unsafe, unsound and cannot be allowed to stand in law.* 14. The Appeal was heard by way of Written Submissions. **Appellant’s Submissions** 1. The Appellant argues that the trial magistrate erred in law by proceeding with the trial without ensuring he was provided with legal representation, thereby violating his constitutional right to a fair trial. In support of this contention, he has relied on the decision in the case of ***David Njoroge Macharia v Republic (2011)KECA 406 (KLR)***, where the court observed that not every person has the capacity to defend themselves effectively, particularly when facing complex legal proceedings and the potential for a heavy penalty. He further cited ***Sheria Mtaani Na Shadrack Wambui v Office of the Chief Justice & another (2021) KEHC 4855 (KLR)*** to emphasize that the right to a fair trial under **Article 50(2)(g)** of the Constitution is absolute and that a trial conducted in ignorance of this right constitutes a substantial injustice, rendering the proceedings a nullity. He has also cited the decision in Joseph ***v Republic (Criminal Appeal E132 of 2022) KEHC 24020 (KLR)*** to highlight the court's mandatory duty to inform an unrepresented accused of their right to legal representation. 2. The Appellant further submits that the prosecution failed to prove its case beyond reasonable doubt. He has pointed out that the essential ingredients of the offense, particularly, being armed with a dangerous weapon, and the use of actual violence, were not established, as no weapons were recovered and the complainants were not harmed. To buttress this submission, he cited ***Mutunga v Republic (Criminal Appeal E010 of 2023) KEHC 2063 (KLR)***, which distinguishes the elements of simple robbery from robbery with violence, arguing that the evidence on record did not sustain the more serious charge. 3. The Appellant maintained that the evidence was flawed due to poor lighting at the scene and the failure of the police to conduct an identification parade. He placed reliance on ***Nicholas Mutusya Mbuvi V Republic (2006) KEHC 2400 (KLR)***, arguing that courts must exercise extreme caution when convicting based solely on the visual identification of a stranger under stressful conditions. He further cites the decision in David ***Karongo Gathui V Republic 2006KEHC3381(KLR)*** and ***Juma v Republic (Criminal Appeal E046 of 2024) KEHC 10438 (KLR)*** to underscore that the lack of an identification parade, coupled with inconsistencies in witness testimonies, rendered the identification evidence wholly unsafe. 4. Finally, the Appellant challenged the sentence, describing it as harsh, excessive, and illegal. He relied on ***Furaha v Republic (Criminal Appeal 45 of 2020) KECA 286 (KLR)*** to argue that the trial court failed to accord him an opportunity to present mitigation, which is an essential part of the trial process. He also cited ***Wasike v Republic (Criminal Revision E005 of 2023) KEHC 6608 (KLR)***, to assert that the sentence was unconstitutional and failed to comply with established judicial principles of individualized sentencing. **Respondent’s Submissions** 1. The Respondent, in opposition to the appeal, submits that the prosecution successfully discharged its burden of proving the charge beyond any reasonable doubt. 2. Regarding the legal ingredients of the offence under Section 296(2) of the Penal Code, the Respondent submits that the prosecution proved all essential elements. Relying on the authority of ***Oluoch V Republic (1985) KLR***, the Respondent identifies the criteria for the offence as follows***:*** *“1. The offender is armed with any dangerous and offensive weapon or instrument; 2. The offender is in company with one or more person; 3. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim.”.* 3. The Respondent argues that these elements should be read disjunctively and that, in this instance, the Appellant was not only in the company of another but was also armed with a panga and threatened the complainant with a knife. 4. The Respondent maintains that the evidence of PW1 and PW2 was crucial and concise and provided a solid basis for conviction. It is submitted that the Appellant was identified through recognition, having visited PW1’s shop the previous to inquire about movies before returning the following day to commit the robbery. To address the reliability of this evidence, the Respondent refers to ***Patrick Opendo Opollo and another V R (CRA NO. 23 of 2014)***, where the court emphasized the need for court to scrutinize the condition of identification to ensure its reliability. 5. The Respondent contends that despite the lack of electricity, there was sufficient natural light from the shop’s entrance to allow for positive identification, and the prior day’s encounter strengthened the witnesses' ability to recognize the Appellant. 6. The Respondent submits that the absence of recovered weapons or stolen property did not undermined the conviction, as the oral testimony regarding the use of a panga and a knife was uncontroverted. The Respondent asserts that the receipts produced by PW4 as Exhibit 1 and 2 provided clear proof of the items stolen, and the failure to recover the PlayStation machines did not negate the evidence of the robbery itself. 7. Finally on the sentence, the Respondent argues that the fifteen-year imprisonment term is commensurate with the offence. It is noted that the law prescribes death as the maximum penalty, and the trial court was gracious enough to impose a 15-year sentence instead. **Summary of the Evidence** 1. **PW1,** testified that he is a businessman operating a gaming and movie establishment at Gakira. He told the court that on 14th May 2024, at 11:00 am, a customer whom he identified as the Appellant herein(identified in the trial court’s proceedings as 1st Accused), visited his shop to inquire about movies. He provided the customer with a booklet, and the individual eventually left in the afternoon. 2. He further testified that on the following day, at around 11:00 am, the same customer returned. At the time, there was a power outage, meaning the shop was dark and the backup lights were non-functional. While PW1 was in the shop with a friend named Kanja, who had come to inquire about a laptop. The 1st Accused entered alone. Shortly thereafter, the 2nd Accused entered carrying a backpack. 3. The 2nd Accused handed the bag to the 1st Accused, who then produced a sharp panga. Simultaneously, the 2nd Accused drew a knife and pointed it at the witness’s ribs, asking if he valued his life. Under threat, PW1 was ordered not to argue and was forced to place items into the bag. When his friend Kanja suddenly returned to the shop, the 2nd Accused jumped on him and similarly held him at knifepoint. The assailants then took three PlayStation machines and various discs before exiting and locking the witness and his friend inside the shop from the outside. 4. PW1 later retrieved CCTV footage when power was restored, though he admitted he hesitated to report the matter immediately as the footage did not explicitly show the act of stealing. During his testimony, PW1 produced two receipts as exhibits to prove ownership of the stolen electronics. Under cross-examination, he maintained that he was able to positively identify the suspects because of the encounter on the day preceding the robbery. 5. **PW2,** testified that he is a student at Murang’a University and a friend of PW1. He stated that on 15th May 2024, at 11:00 am, he was at the shop with PW1. He explained that he left the shop momentarily and, upon his return, found PW1 under siege by two individuals whom he identified in court as the accused persons. The witness testified that as he entered, one of the 1st Accused grabbed him by the neck from behind. Simultaneously, the 2nd Accused, pointed a knife at his ribs and asked him if he valued his life, to which he replied in the affirmative. He was then forcefully shoved into a corner and the attackers proceeded to remove the play stations. 6. Under cross-examination, PW2 reiterated that the assailants were armed with a panga and a knife with a green handle. He confirmed that it was the 1st Accused who had grabbed him from behind while the 2nd Accused held the knife to his ribs. 7. **PW3, Corporal Kennedy Otieno**, a police officer attached to Kangema Police Station. He testified that on 25th May 2024, at 2:00 pm, he received information while in the office that a member of the public was being subjected to mob justice. He informed the OCS, and together with a team of officers, they proceeded to the Gikoi area. Upon arrival, they encountered a crowd of about 40 people who were assaulting a suspect, whom the witness identified as the Appellant. The mob alleged the Appellant was responsible for stealing PlayStation machines within the Gakira area. PW3 and his colleagues managed to rescue the Appellant from the mob at Marimira and escorted him to Kangema Police Station. He was treated and subsequently placed in custody. 8. **PW4,** was the investigating officer in the case. He stated that on 26th May 2024, he was instructed by the DCIO to take over the investigation into a robbery with violence report. Upon commencement, he found the 1st accused (the Appellant) already in police cells, suffering from severe injuries sustained during a mob justice incident. He further stated that he visited the scene of the crime at Delax Entertainment, where he met with the complainant, (PW1). Through his investigations, he established that the robbery had occurred on 15th May 2024 at 11:00 am. He reiterated PW1's account that the suspects had been identified because the 1st accused had visited the shop the previous day, to inquire about movies. PW4 further testified that the assailants were armed with a sharp panga and two sharp knives. 9. Under cross-examination, PW4 he admitted that the formal report by the complainant was only made on 25th May 2024, ten days after the alleged incident. He also conceded that no identification parade was conducted, justifying this by stating the Appellant had been arrested by members of the public in the presence of the complainant. **The Defence Case** 1. The Appellant and his co-accused each gave an unsworn statement with no witnesses to call. The Appellant who was the 1st Accused gave an unsworn statement. He stated that he is 26 years old and, at the time of the alleged offence he was at his home in Gitugi herding his mother’s cattle. He categorically denied being at the scene of the robbery or having any involvement in the crime, stating that the complainant’s testimony against him was entirely false. **Analysis and determination** 1. Upon consideration of the grounds of appeal, the evidence adduced at trial, and the submissions made by both parties, I have identified the following issues for determination: *a). Whether the Appellant’s constitutional right to a fair trial was violated.* *b). Whether the Appellant was positively identified as the perpetrator of the crime.* *c). Whether the prosecution’s case was proved beyond reasonable doubt.* *d). Whether the sentence imposed was harsh and excessive.* 1. This being a first appeal, this court has the duty to review the evidence, carry out its own evaluation and arrive at its own conclusion, save that due allowance must be made for the fact that the trial court had the advantage of hearing the witnesses first-hand as well as observing their demeanor. (See ***Kiilu vs Republic(2005) 1 KLR 174***) and ***Okeno v Republic* [1972] EA 32** *Whether the Appellant’s right to fair trial was violated* 1. The Appellant contends that the trial court violated his constitutional right to a fair trial by failing to inform him of his right to legal representation and by proceeding with the trial without ensuring that he was provided with counsel. Curiously the respondent has not responded to as such a critical issue which constitutes a constitutional imperative. 2. Article 50(2)(g) of the Constitution guarantees every accused person the right to choose and be represented by an advocate and **to** be informed of that right promptly. The right under Article 50(2)(g) is a mandatory requirement. It is an absolute right. 3. In the case of [***NMTalias Aunty v Republic [2019] KEHC 76 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/76/eng%402019-12-19) **Justice Mrima** while expounding on this right opined that the provision gives the accused person the freedom of choice, as to whether he wants to be represented or not. He went on to hold that *“To choose hence connotes options and discretion. When one is called upon to make a choice it must mean that the person has been availed with options upon which he/she may exercise his/her discretion. The right to choose an Advocate of one’s choice as embodied in****Article 50(2)(g)****of the****Constitution****therefore means that for an accused person to exercise that right he/she must be certainly told of the right to legal representation by an Advocate of one’s choice and any other attendant information be availed accordingly to be able to make a choice on whether he/she requires any legal representation.”* 4. It also follows that the record must reflect that the right has been explained to the Accused person. In **NMtalias case**(supra) the court cited the south African case *of****S -vs- Daniels & Another 1983(3) 275(A) at 299 G-H****,* where it was emphasized that it is the mandatory duty of the trial court not only to inform the Accused but to make sure that the record reflects the compliance. The court held: ‘*…. the accused's rights were explained to him, must appear from the record, in such a manner as, and with sufficient particularity, to enable a judgment to be made as to the adequacy of the explanation”* 5. I have perused the trial court record and there is nothing showing the Appellant was informed of his right to legal representation. That constituted an infringement to his right to fair trial. 6. Article 50(2)(h) provides that an accused person has the right to have an advocate assigned by the State and at State’s expense if substantial injustice would otherwise result. Unlike Article 50 (2) (g) however, the right under (h) is qualified. In this regard I wish to rely on the Court of Appeal decision in ***David Njoroge Macharia v Republic [2011] eKLR*** where itheld that legal representation at State expense is not automatic in every criminal case and that an accused person must demonstrate that substantial injustice would result if legal representation is not provided. Similarly, the Supreme Court in ***Republic v Karisa Chengo & 2 Others [2017] eKLR*** emphasized that the entitlement under Article 50(2)(h) depends on the circumstances of each case. 7. **Section 43 of the Legal Aid Act** reiterates the right under Article 50 (2) (h) and goes on to define what the term “substantial injustice” entails. The section provides as follows: *“A court before which an unrepresented accused person is presented shall—* *(a)promptly inform the accused of his or her right to legal representation;* *(b)if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and* *(c)inform the Service to provide legal aid to the accused person.* *(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—* *(a)the severity of the charge and sentence;* *(b)the complexity of the case; and* *(c)the capacity of the accused to defend themselves.”* 1. I have looked at the proceedings. There is no gainsaying that the charge was severe and the sentence prescribed, upon conviction, under section 296(2) of the penal code was equally severe. It matters not that the trial court passed a sentence less than what the law prescribed as the minimum sentence. What was significant was that right from the commencement of the trial, the Appellant was potentially faced with a death sentence, making legal representation a constitutional imperative. I have also observed that the Appellant’s cross- examination was rather scanty. It is evident that he was quite disadvantaged. 2. The court therefore finds that the circumstances of the Appellant, entitled him to legal representation at the state expense. 3. Consequently, the trial process infringed the Appellant’s right to fair trial. The right to fair trial is non- negotiable as it is one of the unlimited rights under Article 25 of the constitution 4. A trial that runs afoul the right to fair trial is a nullity. It is the finding of the court therefore that entire proceedings were a nullity. The proceedings are hereby nullified, the conviction is quashed and sentence set aside. 5. The next inevitable question is whether a retrial is appropriate. 6. The general rule when considering a retrial is that the circumstances of each case must be considered. In [***Muiruri v Republic [2003] KECA 171 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/171/eng%402003-08-08)the court of Appeal held as follows: *“Generally, whether a retrial should be ordered or not must depend on the particular facts and circumstances of each case. It will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial (See*Zededkiah Ojuondo Manyala v Republic *(Criminal Appeal No 57 of 1980); the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the Court’s.”* 7. Further in the case of [BONIFACE MWANGI v REPUBLIC [2006] KEHC 2388 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2006/2388/eng%402006-05-06) the high court held: “*It is trite law that no order for retrial can be made unless the appellate court is of the opinion that on consideration of the admissible or potentially admissible evidence, a conviction might result. See****BRAGANZA vs. REPUBLIC {1957} EA 152****and****MWANGI vs. REPUBLIC {1983} KLR 522****.”* 8. I have considered the circumstances of this case: - the error was on the part of the court. The trial began in 2024, and despite the fact that the Appellant was in custody, an approximate period of two years is not too long to warrant the end of the charge. I have also considered the available evidence. Putting all matters into consideration, am of the view that interest of justice calls for a retrial on this matter. 9. In view of the above findings , I do not consider it necessary to go into the other grounds of Appeal. 10. The Appellant shall be presented to the chief Magistrate ‘s court at Muranga on 2nd of July for purposes of plea- taking. Dated, signed and delivered via *Microsoft Teams,* at Isiolo this 25th day of June 2026. S. Chirchir Judge. In the presence of: Roba Katelo- court Assistant The Appellant