https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7898

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **HCCRA NO. E010 OF 2025** **COLLINS OCHIENG OTIENO…............................................ APPELLANT** **-VERSUS-** **REPUBLIC……………………………………………............RESPONDENT** *(Being an appeal from the Judgment of Hon. E.K Suter (PM) in Mavoko MCCR NO. E685 of 2023 delivered on 29/11/2024)* **JUDGMENT** 1. The appellant was arraigned before the Chief Magistrate's Court at Mavoko on 14th June 2023 facing two counts of robbery with violence contrary to Section 296(2) of the Penal Code, to which he pleaded not guilty. 2. The two counts arose from the same incident involving two complainants namely Wesley Mangira Michoma and Moses Peter Mbuka. 3. The particulars of the two charges are that on the material date, the appellant, while in company with others and armed with a dangerous weapon, robbed Wesley Mangira Michoma and Moses Peter Mbuka of their phones and wallet containing cash, Kshs. 2,000 and immediately before the time of such robbery wounded Wesley Mangira Michoma with a pistol. 4. The prosecution called six witnesses. The complainants, PW1 and PW2, testified that while walking to their workplace at the SGR terminus, they saw a motorcycle being driven slowly and two men standing nearby. 5. As they waited for their driver, the motorcyclist accelerated towards them and the two men joined in. 6. One of the men had an object resembling a pistol, struck PW1 on the face causing bleeding, and robbed PW1 of his phone and wallet containing cash, and robbed PW2 of his phone. 7. The attackers then fled on the motorcycle. The complainants’ driver arrived, and together with PW3 they chased the motorcycle without losing sight of it. 8. PW3 pushed the motorcycle off the road, its occupants jumped off and ran away. 9. Although the motorcycle was recovered, the occupants fled. 10. Later, PW5, a police officer on routine patrol near the expressway, saw two men running across the road; when they spotted his vehicle, they ran away, but he managed to arrest one person, the appellant. 11. At the police station, PW1, PW2, and PW3 identified the appellant as the rider of the motorcycle and one of the robbers. 12. The investigating officer produced the motorcycle and a sketch map. The appellant testified in his defence, stating he had left work at about 8.00 PM and was waiting at Gateway Mall stage when a white vehicle stopped and a man with a walkie-talkie alighted and ordered everyone to stand still; two other people at the stage ran away, but the appellant was arrested and taken to the police station, where the complainants identified him by his clothes. 13. His foreman, DW2, testified that the appellant had been at work until 8.30 PM on the material date. 14. The court considered that no identification parade was held because the appellant was already seen by the complainants at the station before any parade could be conducted, making a parade valueless. 15. The court found that the robbery occurred in a well-lit area with street lights, the complainants saw the appellant before the robbery, his mask was removed enabling identification, the chase began almost immediately after the robbery, and the appellant was arrested shortly thereafter near the scene. 16. The court held that the prosecution had positively identified the appellant without danger of mistaken identity. 17. Regarding the stolen items, the court noted that although no receipts for the phones or cash were produced, failure to produce receipts is not fatal to a robbery case, and the complainants’ evidence that their phones and cash were stolen was credible. 18. On violence, the court found that the appellant was in company of two other persons, one of whom was armed with an object resembling a pistol, and that PW1 was hit on the face and bled, as confirmed by medical documents. 19. The court concluded that all ingredients of robbery with violence were proved. On the appellant’s alibi defence, the court found that DW2’s records did not prove the exact time the appellant left work, and the distance from the work site to the scene was short enough that it was possible for the appellant to reach the scene by the time of the robbery. 20. The court dismissed alleged inconsistencies in the prosecution case as minor and inconsequential, noting that a thirty-minute timing difference and other discrepancies did not vitiate the strong evidence. 21. The court therefore found that the prosecution had proved its case beyond reasonable doubt on both counts, convicted the appellant under Section 215 of the Criminal Procedure Code on Count 1 and Count 2, and delivered the judgment on 29th November 2024. 22. The trial court sentenced the appellant to twenty years imprisonment on each count. The sentences were to run concurrently. 23. The appellant has appealed against both conviction and sentence on the following grounds; 24. ***THAT the learned trial magistrate faulted in points of law and facts by taking into account identification of the appellant herein in court by PW1 & PW2 without observing that such identification is almost worthless without an earlier identification parade.*** 25. ***THAT the learned trial magistrate erred in points of law and facts by convicting and sentencing the appellant herein to serve 20 years imprisonment in all two counts of robbery with violence without observing that both PW1 & PW2 complainants herein did not describe the appellant herein in their first report to the police station and the same first report was not availed in court.*** 26. ***THAT the learned trial magistrate court erred in points of law by convicting and sentencing the appellant herein in both counts without observing that the instant matter was not proved beyond any reasonable doubt when the prosecution failed to discharge its onus of proof.*** 27. ***THAT the lower court below erred in points of law by failing to consider my defence statement yet it was collaborated by DW2 Richard Otieno Omboya who purported that on the alleged material day I was on my job with him as my foreman.*** 28. ***THAT this honorable court is also asked to address the issue of the learned trial magistrate when it ordered and directed that the sentences to run concurrently, yet on the committal warrant the sentences are directed to run consecutively.*** 29. ***THAT the trial court below finally erred in points of law by failing to evaluate the prosecution evidence in a proper manner which led it to reach at an erroneous verdict.*** 30. ***THAT the trial court below erred in points of law by failing to note that light was not proved as required by law.*** 31. The parties filed written submissions as follows; The appellant, Collins Ochieng Otieno, submitted that he was convicted and sentenced to 20 years imprisonment for two counts of robbery with violence. 32. He challenges both the conviction and sentence on multiple grounds. He argues that the trial magistrate erred by relying on dock identification from the complainants (PW1 and PW2) without a properly conducted identification parade, which he contends renders the identification almost worthless, especially since the appellant was a stranger to the complainants. 33. He cites the failure to hold an identification parade as a violation of police standing orders and weakens the prosecution’s case. 34. The appellant also points out that the complainants did not describe him in their first report to the police, and that first report was never produced in court, which undermines the credibility of their later identification. 35. He further submits that the prosecution failed to prove its case beyond a reasonable doubt, as the burden of proof never shifted from the prosecution. 36. The appellant claims his defence, that he was at work with his foreman (DW2) on the day of the offence, was not properly considered by the trial court. 37. He also raises an issue regarding the sentence that although the trial court ordered that the two sentences of 20 years run concurrently from 14th June 2023, the committal warrant indicates they should run consecutively, which he argues is contrary to established case law that sentences for offences committed in the same transaction should run concurrently. 38. Additionally, he contends that the trial magistrate failed to properly evaluate the prosecution evidence, leading to an erroneous verdict, and that the prosecution did not prove the nature of the light available at the scene of the crime, which is essential for testing the accuracy of identification evidence. 39. On these grounds, the appellant asks the court to quash both convictions, set aside the sentences, and order his immediate release from custody unless otherwise lawfully held. 40. The appellant also filed rejoinder submission focusing on two main arguments. First, the appellant challenges the prosecution’s claim that the evidence amounted to recognition of a well-known person. 41. He argues that neither PW1 nor PW2 properly named the assailants in their first report to the police, nor did they describe the nature and extent of their prior interactions with the appellant. 42. Citing case law such as **Alex Wenua Chituno v Republic, Francis Muchiri Joseph v Republic, and Simuyu and Another v R,** the appellant contends that failing to mention a known attacker’s name at the earliest opportunity weakens identification evidence significantly. 43. He also references the well-known **Turnbull** guidelines on the dangers of mistaken recognition, even among close friends or relatives. 44. The appellant submits that without the first police report or proof of meaningful prior interaction, the prosecution’s case falls short of the beyond-reasonable-doubt threshold and is therefore malicious. 45. Second, the appellant addresses the issue of prison records and the committal warrant. He notes that the prosecution had urged prisons to correct their records, but despite his request to the documentation office to comply with the trial court’s concurrent sentencing orders, he has received no response. 46. He asks the court to summon the officer in charge of Kamiti Maximum Prison to explain why the trial magistrate ordered sentences to run concurrently, yet he is serving them consecutively, which he describes as detention without trial. He concludes by asking the court to quash the conviction, set aside the sentences on both counts, order his immediate release, and grant any further orders the court deems fit in the interest of justice. 47. The respondent submitted that the appellant faced two counts of robbery with violence contrary to Section 296(2) of the Penal Code, prompting an appeal built on seven grounds that challenge the trial court's evaluation of identification evidence, proof beyond a reasonable doubt, and the handling of the appellant's defence and sentence. 48. The respondent's submissions, highlighted across the documents, firmly oppose the appeal by arguing that the prosecution successfully proved all statutory elements—theft, use or threat of violence, and the identity of the perpetrator—under Sections 295 and 296(2) of the Penal Code. 49. Addressing the core issue of identity, the respondent relies heavily on the quality of visual identification and recognition at the scene. 50. The primary prosecution witnesses, PW1 and PW2, observed the appellant under well-lit conditions provided by streetlights, noting specific details such as his face and a jacket featuring a distinctive white woollen fur collar. 51. A third witness corroborated seeing a man matching this description running along the expressway, and an arresting police officer confirmed capturing the appellant on the same night. 52. The respondent maintains that this visual evidence constitutes reliable identification by recognition rather than a mistaken stranger identification, rendering a formal identification parade unnecessary. 53. Regarding the statutory requirements of theft and violence, the respondent notes that PW1 and PW2 testified to being confronted by men on a motorbike, one of whom brandished a pistol, resulting in the theft of a phone and a wallet containing cash. 54. Violence was established through evidence that PW1 was struck on the head and face during the confrontation, a fact supported by medical findings from a clinical officer who observed related swelling and tenderness. 55. Furthermore, the respondent dismisses the appellant's sworn defence and alibi as a weak afterthought, pointing out that it was raised late and lacked supporting witnesses to account for his whereabouts at the exact time of the offense. 56. Finally, the respondent systematically asks the court to dismiss the individual grounds of appeal. 57. The prosecution maintains that the trial magistrate properly discharged her duty by evaluating the credible, consistent testimony of its witnesses while rightly disregarding the unpersuasive defence. 58. Regarding the 20-year sentence, the respondent notes that while Section 296(2) prescribes a mandatory death penalty, the trial court exercised leniency by taking into account a social inquiry report and the appellant's status as a first-time offender. 59. Asserting that the balanced 20-year term is a sufficient and lawful deterrent under the circumstances, the Director of Public Prosecutions concludes the submissions by urging the High Court to uphold the conviction, confirm the sentence, and dismiss the entire appeal for lacking merit. 60. The appellant has raised seven grounds of appeal, which can be distilled into three primary issues for determination; 61. ***Whether the conviction was based on reliable identification evidence in accordance with established legal principles;*** 62. ***Whether the prosecution proved its case beyond a reasonable doubt, including consideration of the appellant's alibi defence; and*** 63. ***Whether the sentence imposed was proper, particularly regarding the apparent discrepancy between the trial court's oral order and the committal warrant.*** 64. As a first appellate court, it is my duty to re-evaluate the evidence afresh, analyze it independently, and draw my own conclusions, while bearing in mind that I did not have the advantage of seeing and hearing the witnesses as the trial court did, as established in the locus classicus of **Okeno v Republic [1972] EA 32 .** 65. The most critical issue in this appeal concerns the identification of the appellant as one of the perpetrators of the robbery. 66. The appellant contends that the trial court erred by relying on dock identification by the complainants (PW1 and PW2) without a properly conducted identification parade, and that neither complainant described the appellant in their first report to the police. 67. The record reveals that the robbery occurred at night, and the complainants had never known the appellant before the incident. 68. The trial court acknowledged that no identification parade was held because the appellant had already been seen by the complainants at the police station before any parade could be conducted, and the court reasoned that this made a parade valueless. 69. This is a fundamental misdirection. The Court of Appeal has consistently held that where an accused person is not known to the complainant before the offence, an identification parade is a crucial tool for testing the accuracy of the witness's visual identification. 70. Furthermore, the appellant rightly challenges the absence of any first report to the police containing a description of the appellant. 71. The record indicates that the complainants did not provide any physical description of their assailants in their initial reports, and those first reports were not produced in evidence. 72. The failure to provide any description at the earliest opportunity raises serious doubts about the reliability of subsequent identification. 73. The complainants were strangers to the appellant, and their failure to describe him in their first reports is a significant omission that undermines the prosecution's case on identification. 74. The trial court's finding that the robbery occurred in a well-lit area with street lights does not, without more, salvage the flawed identification process. 75. The well-known guidelines from the English case of **R v Turnbull [1976] 3 All ER 549**, which have been consistently adopted by the courts, require that where the prosecution case depends wholly or substantially on the correctness of identification evidence, the court must examine the circumstances of the identification with the greatest care. 76. These circumstances include the length of time the witness had the suspect under observation, the distance, the quality of the light, whether the witness had seen the suspect before, and the time that elapsed between the original observation and the subsequent identification. 77. The trial court did not adequately interrogate crucial details such as the exact distance between the complainants and the appellant, the precise nature and strength of the street lighting, how long the complainants had the appellant under observation, and whether any feature other than his clothing enabled them to identify him. 78. The appellant testified that the complainants identified him at the police station by his clothes, which is a notoriously unreliable basis for identification, as clothing can be easily substituted or described in generic terms that fit many individuals. 79. Regarding the appellant's alibi defence, the trial court dismissed it on the grounds that the foreman's records did not prove the exact time the appellant left work and that the distance from the workplace to the scene was short enough for him to reach the scene by the time of the robbery. 80. The law on alibi defences is well settled, it is trite law that the burden of proving the falsity, if at all, of an accused's defence of alibi lies on the prosecution. 81. The accused person bears no burden to prove the alibi; it is for the prosecution to displace it by leading credible evidence placing the accused at the scene of the crime. 82. The trial court appears to have shifted the burden onto the appellant to prove his alibi conclusively, which is a fundamental misdirection. 83. The court also appeared to base its rejection of the alibi on the fact that the appellant had not raised it at an early stage. 84. While a court may, in testing a defence of alibi, take into account the fact that it was not raised early so that it could be tested by investigators, this is merely a factor to consider and does not relieve the prosecution of its primary burden. 85. The prosecution was required to prove beyond reasonable doubt that the appellant was at the scene, and given the serious flaws in the identification evidence discussed above, the prosecution failed to discharge this burden. 86. The alibi evidence, corroborated by the appellant's foreman DW2, raised a reasonable doubt as to the appellant's presence at the scene, and that doubt must be resolved in favour of the appellant. 87. The appellant also raised an issue concerning the sentence. Although the trial court ordered that the sentences of twenty years on each count run concurrently, the committal warrant apparently indicates that the sentences are to run consecutively. 88. Having found that the conviction itself is unsafe, it is not strictly necessary to address this sentencing issue. 89. However, for completeness, I note that even had the conviction been sustained, the concurrent sentencing order would have been the correct approach under the "same transaction rule." Where two counts arise from the same incident involving different complainants, the offences are committed in the course of the same transaction, and concurrent sentences are generally appropriate. 90. . In this case, both counts arose from a single incident on the same day, at the same location, involving the same group of attackers. 91. The trial court correctly ordered the sentences to run concurrently, and any contrary indication on the committal warrant would have been an error that this court would have been obliged to correct. 92. In conclusion, I find that the conviction of the appellant is unsafe and cannot be sustained. 93. The identification evidence upon which the prosecution's case rested was fatally flawed and no identification parade was conducted, the complainants saw the appellant at the police station before any formal identification, no description of the appellant was given in the first police reports, and the trial court failed to conduct the rigorous scrutiny required in cases depending on identification evidence, especially where the identification was made at night. 94. The prosecution failed to displace the appellant's alibi defence, and the burden of proof never shifted from the prosecution. 95. The trial court's judgment reflects a failure to properly evaluate the evidence on identification and a misdirection on the burden of proof regarding the alibi defence. 96. Regarding the sentence, the concurrent sentencing order was proper, but this issue is now moot. 97. Consequently, I make the following orders; 98. ***That this appeal be and is hereby allowed.*** 99. ***That the conviction against the appellant in Mavoko Chief Magistrate's Court Criminal Case No. E685 of 2023 on both counts is hereby quashed.*** 100. ***That the sentence of twenty years imprisonment on each count is hereby set aside.*** 101. ***That the appellant, Collins Ochieng Otieno, shall be set at liberty forthwith unless he is otherwise lawfully held.*** 102. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** The Appellant present at Kamiti Maximum Prison PC Mr Magare – for State Chrispine - Court Assistant