https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9519

Muriithi v Republic (Criminal Appeal E121 of 2024) [2026] KEHC 9519 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9519 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E121 of 2024 SM Githinji, J July 3, 2026 Between Dominic Muriithi Applicant and Republic Respondent Judgment 1.Dominic Murithi Alias Karisongo, the Appellant herein, was charged in the Lower Court together with another, with the offence of Robbery with violence, contrary to Section 295 as read with Section 296 (2) of the Penal Code. 2.The particulars of this offence being that on the night of 1st and 2nd day of March, 2020 at Makutano area in Imenti North Sub-County within Meru County, the Appellant jointly with others not before Court robbed Austine Tyson Gatobu of his mobile phone make Huawei Y6, 86xxxxxxxxxx233, 86xxxxxxxxxx27 paired with his mobile phone numbers: 07xxxxxx18 and 07xxxxxx64 valued at Kshs 12,000/- and immediately after the time of such robbery killed the said Austine Tyson Gatobu. 3.The Appellant also faced an alternative Count of handling stolen property, contrary to Section 322 (1)(2) of the Penal Code. 4.The particulars hereof are that on diverse dates between 5th March, 2020 and 21st October, 2020 at Meru Matatu Main Stage in Imenti North Sub-County within Meru County, the Appellant otherwise than in the course of stealing, dishonestly undertook the disposal of mobile phone make Huawei Y6 IMEI: 86xxxxxxxxxxxx33, 86xxxxxxxxxx27 for the benefit of Joseph Muchina knowint or having reasons to believe it to be stolen goods. 5.The prosecution case is that PW-6 who is a brother to the deceased in this case, one Augustine Tyson Gatobu, is a track driver. His deceased brother was a tractor driver. In the year 2020 the two were in Kilifi. The deceased bought a cell phone there, Huawei Y6 in make, blue in colour. He used two phone numbers, 07xxxxxx18 and 07xxxxxx64 of which IMEI numbers were 86xxxxxxxxxxxx33 and 86xxxxxxxxxx27 respectively. Later on the deceased left for Meru. In Meru he was using a motorcycle for his mobility. 6.PW-6 and the deceased kept in touch through phone calls. However on 2/3/2020 the deceased phone was off. It was so upto 4th March, 2020 of which raised concern with PW-6. He called his wife Purity Muthoni and asked her whether she had seen the deceased. The wife told him that the deceased left for Meru Town and had not returned home. PW-6 then called his Cousin who is PW-1 in this case, on 5/3/2020. He told her that he was not able to reach the deceased on phone. PW-1 tried to reach the deceased on phone but it was off. PW-6 told PW-1 to report at the Police Station. She reported at Meru Police Station. 7.On 2/3/2020 at around 7.30 Am, the police at Meru Police Station had received a report of an injured person at Makutano in Meru Town, near Manchester Hotel. The OCS called PW-9 and told her to attend to the issue. She rushed to the scene with PC Koru and a driver known as Museya. At the scene they found a man who had a head injury on his back, bleeding profusely. He was lying on the ground and though not dead, was unable to rise on his own. Next to him was a motorcycle. He was not known to those who had surrounded him. The Police lifted him up, placed him in the police vehicle together with the motorcycle. He was taken to Meru Level 6 Hospital. He was admitted for treatment. He however died soon thereafter while undergoing treatment. 8.On 5/3/2020, the family members identified the deceased’s body at Meru Level 6 Hospital Mortuary. It was for Austine Tyson Gitobu. 9.On 7/3/2020 PW-11 was assigned the case for investigations. Postmorterm was conducted on 9/3/2020. The cause of his death was opined to be intracranial Hemorrhage and subdural hematoma with multiple skull fractures, due to blunt force trauma. The body was then released to the family members for burial. 10.Later on PW-6 went to the deceased’s home and found the box in which he had purchased his Huawei Y6 phone, which was stolen during the robbery. He took the box to DCI office. The box had the phone IMEI number. PW-11 gave particulars of the phone to PW-10 who was working for Safaricom at Law Enforcement Department, to trace it. 11.PW-2 was working at Magondu Matatu Main Stage, and knew the Appellant herein physically. On a date he could not remember but in March, 2020, the Appellant who was by then schooling, approached him. He had a Huawei Y6 phone which he claimed to be his. The Appellant said he had financial problems and had not paid house rent for 2 months. He said he was selling his phone for 4,000/- to raise money. PW-2 said he had no cash. The Appellant asked him whether he could assist otherwise, and he said there was no way in which he could assist. 12.At that point, PW-4 who’s a Pastor at Harmony Glory Church passed by. He knew PW-2. He asked PW-2 why he was not busy, and PW-2 told him about the Appellant who was selling a phone. PW-4 deliberated with the Appellant about the phone he was selling. The Appellant said the phone was his and he was selling it as he had not paid house rent for 2 months, and his wife was pregnant. It was a Huawei Y6 phone, and out of mercy, PW-4 decided to purchase it for 4,000/-. PW4 paid him cash and they agreed he will give it receipt to PW-2. 13.Later on in October 2020 PW-4 went to the barber shop of PW-3. He told him he had a sister in South Africa and had spent her money. He wanted to sell his phone a Huawei Y6, to raise the money. He told PW-3 to look for a buyer. 14.On 31/3/2020 PW-5’s phone got spoilt. He told his friend, PW-3 about it. PW-3 told him about PW-4 who was selling a Huawei Y6 phone. PW-3 organised for PW-4 and PW-5 to meet. The two met and PW-5 bought the phone for 7,000/-. PW-5 used the phone for nine months. 15.PW-11 received a report from Safaricom (Criminal Investigation Unit) that the phone was being used by PW-5 (Joseph Muchina Kinuthia). He was traced at Meru-Maua stage and arrested. He had the Huawei Y6 phone. Upon investigation, he disclosed that he had bought the phone from PW-4. PW-4 was also traced and arrested. While in custody, PW-4 Identified the person who had sold the phone to him. He is the Appellant in this case. He told CID Officers about it and he was arrested. Pw-3 who had witnessed the said sale was called and confirmed it. The Appellant did not give a reasonable explanation on how he had obtained or possessed the said phone. He was then charged with the offences carried in the charge sheet. 16.The Appellant in his defence gave a sworn testimony and called no witness. His defence is that he was arrested by police on 17th September, 2020. It was during Covid 19 period and there was a curfew. He was arrested while going for gunny bags, used for packing miraa. He thought he was arrested for violating Covid imposed rules as many others were as well arrested together with him. Other suspects stole the money he had. The police asked him for 1,500/- so as to be released but he did not have it. He was placed in police cells. He found 4 men in the cell who attacked him, claiming that he had an ugly face and looked like a thug. One of the men claimed he’s the one who had sold the phone to him. The police claimed that he had been selling stolen phones. He had not stolen from anyone. 17.PW-4 was not known to him and nor was the deceased. He claimed that he was innocent. 18.The trial Court evaluated the evidence and found him guilty of the offence in Count 1 (main Count). He was accordingly convicted of it and sentenced to death. 19.Dissatisfied with the said conviction and sentence the Appellant filed an appeal based on the following grounds:1.That, the Learned Trial Magistrate erred in both matters of law and facts by failing to NOTE that the alleged exhibit produced before Court was not found in possession of the Appellant.2.That, the Trial Court erred in both matters of law and facts by failing to note that the persons who were found in possession of the exhibit framed the Appellant to be the culprit since the Appellant was in police cell with another offence, and the police decided to withdraw the charges and charged the Appellant with the current offence without analyzing the circumstances of the case.3.That, the Trial Court erred in both matters of law and facts by failing to note that the prosecution witnesses were not in position to explain how they knew the Appellant.4.That, the Trial Court erred in both matters of law and facts by failing to note that the prosecution case had a lot of inconsistencies and discrepancy.5.The Learned Magistrate erred in matters of law and fact by imposing harsh sentence which is unconstitutional. 20.The said appeal was opposed by the Respondent and was canvassed by way of Written Submissions. Both sides filed their respective submissions. 21.This being a first Appeal, this Court is under a duty to re-evaluate, re-analyse and reconsider the entire evidence that was presented before the trial Court and to arrive at its own independent conclusions on both the facts and the law. In doing so, however, the Court must bear in mind that it did not have the advantage enjoyed by the trial Court of seeing and hearing the witnesses testify, and must therefore give due allowance for that disadvantage. This was well expressed in the case of Okeno –vs- Republic (1972) EA 32. 22.The facts of this case are that when Augustine Tyson Gatobu was robbed, his phone Huawei Y-6 was stolen. No witness witnessed the incident take place. However, upon investigations the phone was recovered about 7 months later in use by PW-5. PW-5 had bought it from PW-4, who had also bought it in the month of March, 2020 from the Appellant. PW-2 witnessed the said sale and knew the Appellant physically before then. Though the Appellant denied that he’s the one who sold the phone to PW-4, PW-2 and PW-4 could not have made a mistake of him. He was properly identified and I do agree with the trial Court that he is the one who sold the said phone within the same month in which it was stolen from the deceased herein. 23.Having established so, the next issue for determination is whether the prosecution established the doctrine of recent possession so as to justify the Court drawing an inference of guilt against the Appellant. 24.This doctrine is founded upon:-1.Section 119 of the Evidence Act, which empowers the Court to presume the existence of fact that are likely to have happened, having regard to the common course of natural events and human conduct.2.Section 111(1) of the Evidence Act, which places upon an accused an evidential burden to explain facts especially within his or her knowledge, including how recently stolen property came into his or her possession. Here the burden placed upon an accused is merely evidential and does not shift the legal burden resting upon the prosecution to prove the charge beyond reasonable doubt. 25.In the case of Eric Otieno Arum –vs- Replublic (2006) eKLR the Court of Appeal stated:-“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.” 26.There must be proof:i.That the property was found with the suspect;ii.That the property is positively identified as the property of the complainant;iii.That the property was stolen from the complainant; andiv.That the property was recently stolen, the question of recency depending on the nature of the property and the ease with which it can change hands. 27.In this case, the prosecution demonstrated an unbroken and traceable claim of possession of the stolen Huawei Y6 phone from the deceased. The evidence established that the phone changed hands through successive possessors by way of sale, each of whom identified the person who sold it to him, until the claim led directly to the Appellant. The Appellant failed to offer any reasonable or credible explanation as to how he came into possession of the Huawei Y6 phone. The uninterrupted claim of possession therefore irresistibly points to the Appellant as the person from whom the stolen phone originated after the robbery. 28.The doctrine of recent possession is not defeated merely because the stolen phone had passed through several hands before recovery. What is required is that the prosecution proves, by credible evidence, an unbroken claim linking the recovered phone to the Appellant. Where each intermediary in the claim satisfactorily accounts for the source from which he obtained the phone, and the claim remains intact without any unexplained gap, the Court is entitled to infer that the Appellant was either the robber or a guilty receiver unless he gives a reasonable explanation consistent with innocence. 29.The Appellant’s implausible explanation therefore strengthens, rather than weakens, the irresistible inference that he was the source of the stolen phone, soon after the robbery. 30.Accordingly, the Court is invited to find that the prosecution proved the doctrine of recent possession beyond reasonable doubt. The Appellant was therefore rightly convicted for the offence of robbery with violence. 31.On the imposed death sentence, this Court is alive to the effect of the decision of the Supreme Court of Kenya in Francis Korioko Muruatetu & Another –vs- Republic and the subsequent directions issued by the Supreme Court, which clarified that the Muruatetu decision was confined to the mandatory death sentence prescribed for the offence of murder under Section 204 of the Penal Code and does not automatically extend to other offences carrying the death penalty, including Robbery with violence under Section 296(2) of the Penal Code. Consequently, the death sentence prescribed for the offence of robbery with violence has not been declared unconstitutional, and it remains a lawful sentence under Kenyan Law. 32.Given the foregoing, the appeal on the death sentence imposed also fails. The bottom line is that the appeal is in want of merit and is hereby dismissed. DATED AND DELIVERED AT MERU THIS 3RD DAY OF JULY, 2026.S.M. GITHINJI –JUDGE3/7/2026In the presence of:-Ms. Murugi for the Appellant.Ms. Adhi for the Respondent.