https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10347

Kariuki v Director of Public Prosecution (Criminal Appeal E059 of 2022) [2026] KEHC 10347 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10347 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E059 of 2022 S Mbungi, J July 10, 2026 Between Edward Maina Kariuki Appellant and Director of Public Prosecution Respondent (Being an appeal against the judgment of Hon. E. Mutunga - PM delivered on 29th September 2021 at Kandara Law Courts in Criminal Case No. 1885 of 2019) Judgment (Being an appeal against the judgment of Hon. E. Mutunga - PM delivered on 29th September 2021 at Kandara Law Courts in Criminal Case No. 1885 of 2019) 1.The appellant herein was charged with three counts of robbery with violence contrary to Section 296(2) of the penal code before the trial court. The particulars of the first count were that on 3rd October 2019 at Nanga area, Kituamba location within Gatanga sub-county in Murang’a county, with others not before this court while armed with a pistol, the appellant robbed Peter Karangi Karuma one mobile phone make Huawei valued at Kshs. 40,000/- (forty thousand shillings) and cash in foreign currency 6 dollars, a D-Max watch valued at Kshs. 35,000/- all valued at Kshs. 73,630/- and immediately during the time of such robbery shot and injured the said Peter Karangi Karuma. 2.The particulars of the second count were that on 3rd October at Nanga area, Kituamba location within Gatanga subcounty in Murang’a county, with others not before court, while armed with a pistol, the appellant robbed Monicah Wanjiku Maina a phone model Cambox valued at Kshs. 30,000/- (thirty thousand shillings). 3.The particulars of the third count were that on 3rd October 2019 at Nanga area, Kituamba location within Gatanga sub county in Murang’a County, with others not before court while armed with a pistol robbed John Mwaniki Muiruri of two phones make and model Infinix worth Kshs. 20,000/- (twenty thousand shillings) and a Nokia phone also worth Kshs. 10,000/- (ten thousand shillings) all these items worth Kshs. 30,000/- (Thirty thousand shillings). 4.The appellant pleaded not guilty to all the charges and the matter proceeded to full trial. The prosecution called eleven witnesses in support of its case. Facts at trial 5.PW1 was Peter Karuma Kanagi. He recalled that on 3rd October 2019, he was from Nairobi to Nanga Kihoto, in the company of his wife to see their land. He stated that they picked his cousin, who drove them to the land in a black Land Cruiser. After viewing one parcel, they proceeded to another parcel where they were to be introduced to one Maigwa, who was farming on the land.PW1 testified that upon arrival, he stopped the vehicle and his cousin and wife proceeded to the shamba. He then went to call them and, while doing so, he noticed a motor cycle behind their vehicle with two occupants. He stated that the two men approached him and asked whether he was selling tomatoes. One of them then drew a gun and pointed it at him. According to PW1, the armed person demanded money and threatened to kill him. PW1 told him to put the gun down, but the assailant shot at the ground, whereupon PW1 removed US dollars, which he said was equivalent to Kshs. 60,000/-, and handed it over. He also gave out his watch and wallet. PW1 further testified that during the incident, he was shot on the shoulder and the bullet lodged in his spinal cord and was thereafter taken to Thika Level 5 Hospital, where he underwent surgery for removal of the bullet, and was later taken to Avenue Hospital. He produced treatment notes and a discharge summary, and was also issued with a P3 form. 6.On identification, PW1 stated that he was able to identify the attacker who was shorter than him and wore a black jacket. That he recorded his statement at Kirwara Police Station on 23rd October 2019. Later, on 1st November 2019, he was called by a DCI officer and informed that a suspect had been arrested. He went to Kirwara Police Station where an identification parade was conducted, and he identified the appellant as the person who had the gun. He also identified the appellant in court as the attacker. 7.Upon cross-examination by the appellant, PW1 stated that he was with his wife and other persons, and that three of them were robbed during the incident. He maintained that the appellant shot him and robbed him of a watch and six dollars. He further stated that he had not met the appellant before the incident and did not see him prior to the identification parade. On re-examination, PW1 stated that the attack occurred during the day while he was at the shamba with his cousin Mwaniki, his wife and the shamba boy. That he was able to identify the assailant because the incident took place during the day. He reiterated that the appellant was armed with a gun, threatened to kill him and shot him. He added that he identified the appellant during an identification parade, but none of the stolen items was recovered. 8.PW2 was Monica Wanjiku Maina, the wife to PW1. She testified that on 3rd October 2019, she had travelled with her husband and their cousin to Jogoo Kimakia and Nanga/Kihoto to check on property and collect title documents. While at the shamba, she saw a motorcycle near their vehicle with two occupants, one of whom was armed with a gun. She retreated and heard gunshots, after which her husband was shot. She stated that she lost a Camon X phone. She described the assailant as dark, thin and wearing a black jacket, and stated that she was able to identify him because she was about three meters away from him during the incident. She further testified that she positively identified the appellant during an identification parade and also identified him in court as the person who shot her husband. 9.PW3 was John Mwaniki Muiruri. He testified that on 3rd October 2019, he accompanied his cousin, PW1, and PW1’s wife to Nanga/Kihoto area to view their shambas. While PW1 had remained in the vehicle, PW3 and PW2 went to the shamba to pick vegetables. He then saw two men arrive on a motorcycle and demand money from PW1. The attackers also went through PW3’s pockets and stole his items, including two mobile phones, a Nokia 1600 and an Infinix, together with Kshs. 850/-. He stated that one of the attackers was armed with a gun, ordered them to lie down and later shot PW1 at the back. PW3 helped take PW1 to Thika Level 5 Hospital and later recorded his statement at Kirwara Police Station. He testified that he was able to identify the appellant as the armed attacker, describing him as dark, slim and wearing a black jacket and black trouser. He identified the appellant during an identification parade and also identified him in court. 10.PW4 was Peter Njoroge, a farmer from Gikonyo. He testified that on 3rd October 2019, at around 2.00 p.m., he was at his shamba in Nanga with customers who were buying sukuma wiki when two men arrived on a motorcycle. The men ordered everyone to lie down and demanded money and phones. PW4 stated that one of the attackers was armed with a gun and that one of the customers was shot during the incident. He helped carry the injured person to the vehicle after the attackers left and later reported the matter to the police at Ngati. He stated that nothing was stolen from him and, although he saw the attackers, he was afraid during the incident and could not remember their faces or identify the appellant in court. 11.PW5 was Francis Maigwa. He testified that on 3rd October 2019, at around 2.00 p.m., he was at home when he met PW3, who was shivering. That PW3 informed him that they had been robbed and led them to the shamba where the incident happened. That he then reported the matter to Ngati police station. He stated that he did not know the accused, nor the other complainants who were injured save for PW3. 12.PW6 was John Mwaniki from Nanga. He recalled that on the material day, while from work, he saw a motorcycle and a vehicle at the shamba, with people present at the scene. He heard some commotion and heard the people being ordered to lie down. He then heard about three gunshots and saw the attackers flee on a black motorcycle. He later recorded his statement at Ngati Police Station and stated that used cartridges were collected from the scene. On cross-examination, he maintained that he only saw the motorcycle and motor vehicle, and that the attackers were wearing hats. 13.PW7 was No. 78123 CPL Ejurine Barasa. He testified that on 1st November 2019 while on patrol, he got information that the accused person had been spotted in Wempa at Mitubiri road. That he proceeded there together with his colleagues and arrested the accused. He stated that he did not know the appellant before the arrest. Upon cross-examination, he stated that he acted on information received and that nothing was recovered from the appellant. 14.PW8 was No. 22782 PC Patrick Kariuki Mungai, the investigating officer from Gatanga Police Station DCI. He testified that he investigated the robbery which occurred on 3rd October 2019 at Nanga area, where PW1 was shot and robbed of a phone, six dollars and a D-Max watch. He stated that PW2 was robbed of a Tecno phone, while PW3 lost two phones. He further testified that the appellant was arrested by the Anti-Robbery Unit and identified by the complainants during an identification parade. Although nothing was recovered from the appellant, PW8 forwarded the recovered bullet and used cartridges for ballistic examination. 15.PW9 was No. 2352225 Chief Inspector Kenneth Chomba, a ballistic examiner attached to the DCI Headquarters, Nairobi. He testified that he examined two spent cartridges and one bullet forwarded to him by PW8. Upon examination, he found that the cartridges were 9 x 19mm calibre and had been fired from the same firearm, while the bullet was also of 9mm calibre, commonly fired from a Ceska pistol. He produced his ballistic report and confirmed that the exhibits were ammunition within the meaning of the Firearms Act. 16.PW10 was No. 235716 Chief Inspector Vivian Mutinda, then working at Juja Police Station and previously attached to Kirwara Police Station. She testified that on 1st November 2019, she was called by DCI John Kanda and requested to conduct an identification parade. She stated that three witnesses were to identify the suspect and that she arranged nine parade members of similar stature, informed the appellant of his rights, and allowed him to choose his position in the parade. The appellant chose to stand between members numbered 0 and 1. PW10 testified that PW1, PW2 and PW3 each positively identified the appellant during the parade, after which the appellant indicated that he was satisfied with the process. She produced the identification parade report as an exhibit and identified the appellant in court. 17.PW11 was George Maingi, a doctor at Thika Level 5 Hospital. He produced a P3 form in respect of PW1, Peter Karangi Karuma, which had been filled by Dr. Kariuki, whose handwriting he confirmed he knew. He testified that PW1 had injuries on the chest caused by a bullet, had undergone surgery, and was issued with antibiotics. The degree of injury was assessed as harm. He confirmed that the injuries captured in the P3 form were consistent with those in the treatment notes and produced the P3 form as an exhibit. That marked the close of the prosecution case. 18.Upon considering the evidence adduced and the oral submissions by parties in open court, the trial court found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. Defence Case 19.The appellant testified as the only defence witness. He gave unsworn testimony and stated that he was from Laikipia County, and that he worked as a co-driver at Triple A Company before being fired. He denied committing the offence and stated that around the material time, he had been hired to accompany a lorry from Nanyuki to Naromoru to supply quarry stones. He testified that on 30th October 2019, while at a club, a Subaru vehicle stopped and he was arrested. According to him, the police searched his house and demanded that he surrender a gun, which he said he did not have. He stated that he was taken to Kenol and later charged with robbery with violence, an offence he maintained he knew nothing about. 20.After considering the evidence tendered by both parties the trial court found the appellant guilty of the offence of robbery with violence and sentenced him to life imprisonment. 21.Aggrieved by the decision of the trial court, the appellant proffered the present appeal vide a petition of appeal filed in court on 24th October 2022, citing the following grounds of appeal:a.THAT, the learned trial magistrate erred in law and fact by convicting on a case that identification which circumstances were unfavorable and did not comply with the TURNBULL GUIDELINES on identification (The Court of Appeal in R v Turnbull [1977] QB 224).b.THAT, the learned trial Magistrate erred in law and fact by failing to find that the ingredients of the offence of robbery with violence were unproven.c.THAT, the learned magistrate erred in law and fact by failing to find the first report made was of unknown thugs, and thus identification was an afterthought.d.THAT, the learned trial magistrate erred on both law and facts by relying on an identification parade that violated the rules of the identification parade including the witnesses seeing the accused before the parade was conducted and also failing to describe the assailants in the first report.e.THAT, the learned magistrate erred in law and fact by convicting the accused on mere suspicion that was scanty to warrant conviction and sentence on a serious offence.f.THAT, the learned trial magistrate erred on both law and facts by relying on evidence full of material contradictions, inconsistencies, and afterthoughts.g.THAT, the learned trial magistrate erred on both law and facts by failing to note that no recent robbed items were recovered from the accused and no nexus was built between the accused and the offence.h.THAT, the learned trial magistrate erred on both law and facts by relying on evidence from investigating officer that was not cogent and also that of the clinical officer that was red herring and tenuous.i.THAT, the learned trial magistrate erred on both law and facts by failing to take into account the appellant's plausible defence and mitigation and shifting the burden to the appellant.j.THAT, the learned trial magistrate erred on both law and facts by imposing an erroneous sentence and the evidence tendered does not meet the ingredients of the charge of robbery with violence.k.THAT, the judgment of the trial court was against the weight of the evidence and the same is a violation and contravention of the law.l.THAT, the learned trial magistrate erred on both law and facts by convicting and sentencing on a case that was not proved beyond reasonable doubt and violated the right to a fair trial under Article 50(2) of the 2010 constitution.m.THAT More grounds to be expounded during the filing of appeals submissions as he lodged the appeal without the trial court proceedings and judgement.n.THAT, he be supplied with copies of court proceedings to enable him raise more relevant grounds. 22.The appellant prayed that the appeal be allowed and considered meritorious, the conviction squashed, the sentence meted set aside, and he be set at liberty in the interest of justice. 23.The appeal was canvassed by way of written submissions. On record are the appellant’s written submissions filed on 23rd October 2024, , the appellant’s rebuttal submissions dated 10th August 2025, and the respondent’s written submissions dated 24th May 2024, all of which this court has carefully considered. Appellant’s submissions 24.The appellant filed amended grounds of appeal in together with his submissions dated 23rd October 2024, citing the following grounds:a.THAT, the learned trial magistrate erred in law and fact by convicting the appellant but failed to note that, the essential ingredients of the offence of Robbery with Violence under section 296(2) of the Penal Code were not proved against the appellant the prosecution failed to prove theft a very essential ingredient of the offence charged thus the charge cannot be said to have been proved.b.THAT, the learned trial magistrate erred in law and facts when she relied on the evidence of purported visual identification to convict the appellant yet failed to note that circumstances were not conducive for positive identification owing to the fact that the perpetrators were strangers.c.THAT, the learned trial magistrate erred in law and facts in finding that the identification parades conducted by pw9, were properly procured while there were glaring irregularities and procedural technicalities were flawed (see Chapter 46 Police Standing Orders.)d.THAT, the learned trial Magistrate erred in law by awarding a conviction and a Sentence of Life imprisonment but failed to appreciate recent law developments, the Sentencing policy Guidelines 2015 and the constitutional Provisions Article 50(2)(Q). 25.The appellant submitted that the charge of robbery with violence was not proved against him to the required standard. He averred that theft is a central ingredient of robbery with violence, and that the offence under section 296(2) of the Penal Code is essentially an aggravated form of theft. He submitted that no stolen item, money, firearm, or any other incriminating exhibit was recovered from him upon arrest. On the allegation that a firearm was used, the appellant submitted that the prosecution did not establish any nexus between him and the alleged pistol. He contended that no pistol was recovered from him or produced in court as an exhibit, and that the ballistic evidence merely showed that a bullet and spent cartridges were examined, but did not connect him personally to any firearm. He therefore faulted the trial court for concluding that he was armed with a pistol. 26.On identification, the appellant submitted that the conviction was primarily founded on visual identification by PW1, PW2 and PW3, yet the said witnesses did not know him before the incident. He argued that the trial court failed to properly warn itself of the danger of relying on visual identification by strangers. According to him, the evidence of PW1, PW2 and PW3 amounted largely to descriptions of complexion, body size and clothing rather than positive identification. He further submitted that PW4, PW5 and PW6 did not identify him as one of the attackers, and that the circumstances leading to his arrest were unclear. 27.The appellant placed particular emphasis on the first report. He submitted that the report made vide OB No. 89/03/10/2019 did not contain his name, physical description, clothing, complexion, height, or any other identifying feature. He argued that the complainants reported that they had been attacked by unknown persons and did not provide a prior description capable of supporting the subsequent identification parade. In his view, the failure to produce the first report in court as an exhibit deprived the court of the opportunity to compare the initial account with the later identification evidence, thereby rendering the identification unsafe and an afterthought. 28.The appellant further challenged the identification parade. He submitted that the parade was flawed and did not comply with the Police Standing Orders. He averred that the witnesses had not given prior written descriptions before the parade was conducted; that PW1’s evidence suggested that he had been shown the person who had the gun; that the appellant was allegedly exposed to the witnesses before the parade; and that the members of the parade were not sufficiently similar in age, complexion, height, appearance and general physical features. He also faulted the parade forms for failing to clearly indicate the manner in which the appellant was identified. 29.Regarding contradictions and inconsistencies, the appellant submitted that the prosecution evidence was not reliable. He argued that the evidence did not establish a clear and consistent link between him and the robbery, and that the investigating officer did not prepare inventories or recover any stolen items from him. He further submitted that the evidence of the investigating officer was not cogent, while the medical and ballistic evidence did not identify him as the offender but merely showed that PW1 had been injured and that a firearm may have been used. 30.On sentence, the appellant submitted that the sentence of life imprisonment was harsh, unlawful and inconsistent with recent developments in sentencing jurisprudence. He argued that courts now have discretion even where statutory provisions prescribe severe sentences, and that a life sentence should be imposed cautiously, bearing in mind the objectives of sentencing, the Sentencing Policy Guidelines, the life expectancy of the offender, and the right to benefit from the least severe prescribed punishment under Article 50(2)(p) of the Constitution. He urged the court to interfere with the sentence if the conviction was upheld. 31.In his rebuttal submissions, the appellant maintained that the respondent had failed to address the crucial issue of the first report. He argued that OB No. 89/03/10/2019 did not contain his physical description, and that the failure by the prosecution witnesses to describe the assailant at the earliest opportunity rendered the subsequent identification evidence unreliable. He submitted that where a case turns on identification by strangers, the first report is important because it provides the basis upon which an identification parade is conducted. 32.The appellant further submitted that the first report was not produced in court as an exhibit, and therefore the court could not compare the initial description allegedly given by the complainants with the person later identified at the parade. He argued that this omission created doubt in the prosecution case and weakened the evidence of PW1, PW2 and PW3, who purportedly identified him. 33.He also faulted the respondent for partially conceding on sentence while proposing a custodial term of forty years. According to him, the proposed sentence had no basis where the conviction itself was unsafe. He maintained that the doubts arising from the identification evidence should be resolved in his favour. He therefore urged the court to allow the appeal, quash the conviction, set aside the sentence and set him at liberty. Respondent submissions. 34.The respondent opposed the appeal on conviction, submitting that the prosecution proved the charge of robbery with violence beyond reasonable doubt. On the ingredients of robbery with violence, the respondent submitted that the evidence showed that the appellant was in the company of another person, was armed with a gun, robbed PW1, PW2 and PW3, and shot PW1 during the robbery. It was argued that PW1 was robbed of dollars, a watch and wallet; PW2 was robbed of a Camon X phone; and PW3 was robbed of two phones. The respondent further relied on the evidence of PW4, PW5 and PW6 on the presence of armed attackers, gunshots and recovery of spent cartridges, together with the ballistic and medical evidence confirming that PW1 sustained gunshot injuries. 35.On identification, the respondent submitted that PW1, PW2 and PW3 positively identified the appellant. Counsel argued that the incident occurred during the day, around 2.00 p.m. to 3.00 p.m., and that the complainants had sufficient opportunity to observe the attacker. PW1 described the attacker as shorter than him and wearing a black jacket; PW2 described him as dark and thin; while PW3 described him as dark, slim and wearing a black jacket and black trousers. The respondent further submitted that the identification parade was properly conducted by PW10 on 1st November 2019, less than a month after the robbery, and that the appellant was identified by PW1, PW2 and PW3. 36.The respondent also submitted that the appellant’s defence did not dislodge the prosecution case. Counsel argued that the appellant gave unsworn evidence, called no witness, and his defence amounted to a mere denial. 37.On sentence, the respondent partially conceded the appeal. Counsel submitted that although the offence under Section 296(2) of the Penal Code attracts a maximum sentence of death, life imprisonment had since been declared unconstitutional, following the decision in Julius Kitsau vs Republic (CRA 12 of 2021). The respondent therefore prayed for the court to uphold the conviction but substitute the life sentence with a custodial sentence of 40 years, considering the aggravating circumstances, particularly the use of a gun and the shooting of PW1. Analysis and Determination 38.This being the first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows:“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 39.Having considered the amended grounds of appeal, the written submissions by the parties, the lower court proceedings and the judgment of the trial court, I isolate the following issues for determination:i.Whether the appellant was positively and safely identified as one of the perpetrators, based on the first report and identification parade relied on in the prosecution case.ii.Whether the prosecution proved the ingredients of robbery with violence beyond reasonable doubt.iii.Whether the evidence on record, including the appellant’s defence and the alleged investigative gaps, raised any reasonable doubt.iv.Whether the sentence imposed was lawful and proper in the circumstances in light of the Sentencing Policy Guidelines and Article 50(2)(p) of the Constitution. 40.I begin with identification because it was the central complaint in the appellant’s amended grounds and submissions. The appellant argued that the conviction was founded on visual identification by PW1, PW2 and PW3, who were strangers to him. He contended that the circumstances were not conducive for positive identification; that the first report was made against unknown thugs; that no physical description was given at the earliest opportunity and that the identification parade was flawed and contrary to the Police Standing Orders. 41.The law on visual identification is settled. Where a case depends wholly or substantially on visual identification, the court must warn itself of the special need for caution before acting on such evidence. In R v Turnbull [1977] QB 224, the court emphasized that ‘an honest but mistaken witness can be convincing’ and that ‘a number of witnesses can all be mistaken.’ The Turnbull guidelines require the court to examine, among other matters, the time the witness had the accused under observation, the distance, the lighting, whether there was any obstruction, whether the witness had seen the accused before, the time lapse between observation and identification, and whether any description was given at the earliest opportunity. 42.The Court of Appeal in Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR) also drew a distinction between recognition and identification of a stranger, stating that recognition is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. In the present appeal, however, PW1, PW2 and PW3 did not know the appellant before the robbery. The evidence was therefore evidence of identification of a stranger, not recognition, and it required careful scrutiny. 43.More recently, in Sebaganga & another v Republic (Criminal Appeal E017 of 2023 & E021 of 2024 (Consolidated)) [2024] KECA 1297 (KLR), the Court of Appeal reiterated that where identification evidence is relied upon, the court must be satisfied that such identification is free from the possibility of error. Guided by the above principles, I have carefully re-evaluated the evidence of PW1, PW2 and PW3. 44.PW1 testified that the robbery occurred during the day. He saw a motorcycle behind their vehicle with two occupants. The two men approached him and one of them drew a gun, pointed it at him, demanded money, threatened to kill him and later shot him. PW1 described the armed attacker as shorter than him and wearing a black jacket. He later attended an identification parade on 1st November 2019 and identified the appellant as the person who had the gun. He also identified him in court. PW2 testified that she saw a motorcycle near their vehicle with two occupants, one of whom was armed with a gun. She stated that she was about three meters away from the armed assailant and was able to identify him. She described him as dark, thin and wearing a black jacket. She later identified the appellant at the identification parade and also identified him in court as the person who shot her husband. PW3 testified that he saw two men arrive on a motorcycle and demand money from PW1. He stated that one of the attackers was armed with a gun, ordered them to lie down and later shot PW1 at the back. He described the armed attacker as dark, slim and wearing a black jacket and black trouser. He too identified the appellant during the identification parade and in court. 45.Applying the Turnbull guidelines to the evidence on record, it is not disputed that the robbery occurred in broad daylight, at about 2.00 p.m. PW1 had a direct confrontation with the gunman. PW2 was about three meters away. PW3 was also at the scene and was himself robbed. This was not identification in darkness or from a fleeting glance. The witnesses had sufficient opportunity to observe the armed attacker and the circumstances of identification were favorable. The descriptions given by PW1, PW2 and PW3 were also broadly consistent. PW1 described the attacker as shorter than him and wearing a black jacket. PW2 described him as dark, thin and wearing a black jacket. PW3 described him as dark, slim and wearing a black jacket and black trouser. The descriptions were not identical in every detail, but they were consistent on material features of complexion, build and clothing. 46.The appellant submitted that PW4, PW5 and PW6 did not identify him. PW4 stated that although he saw the attackers, he was afraid during the incident and could not remember their faces. From the record, PW5 was not an eyewitness to the robbery. PW6 heard commotion, heard gunshots and saw the attackers flee on a motorcycle. To me, their inability to identify the appellant merely reflected the limits of their respective observations and did not amount to a contradiction on the identity of the armed attacker. 47.The appellant also placed emphasis on the first report. He submitted that OB No. 89/03/10/2019 did not contain his name, physical description, complexion, height, clothing or any other identifying feature. He further argued that the report referred to unknown thugs and that the failure to produce the OB in court deprived the trial court of an opportunity to compare the initial report with the subsequent identification evidence. In cases of identification by strangers, the first report is important because it assists the court in testing the reliability of later identification. However, the fact that the first report referred to unknown persons was not, by itself, fatal. PW1, PW2 and PW3 had not known the appellant before the robbery. It was therefore natural that the first report would describe the assailants as unknown persons. That is why an identification parade was necessary. Additionally, it is worth noting that the first report was not produced in court. That omission was not ideal, and the appellant was entitled to criticize it. However, the court must consider the evidence as a whole. In the present matter, PW1, PW2 and PW3 testified that they observed the armed assailant in broad daylight. Their descriptions were broadly consistent. They each later identified the appellant at an identification parade. I therefore find that the omission to produce the first report did not, in the circumstances of this case, render the identification evidence unsafe. 48.I now turn to the identification parade. PW10 testified that she conducted the parade on 1st November 2019. She stated that three witnesses were to identify the suspect. That she arranged nine parade members of similar stature; that she informed the appellant of his rights; and that she allowed him to choose his position in the parade. The appellant chose to stand between members numbered 0 and 1. PW1, PW2 and PW3 each positively identified him by touching him. PW10 further testified that the appellant indicated that he was satisfied with the manner in which the parade was conducted, and the parade report was produced as an exhibit. 49.The appellant challenged the parade on the basis that the witnesses had not given prior written descriptions, that PW1’s evidence suggested that he had been shown the person who had the gun, that the appellant may have been exposed to the witnesses before the parade, and that the parade members were not sufficiently similar in age, complexion, height and general appearance. I have considered those complaints. There is no cogent evidence that PW1, PW2 or PW3 saw the appellant before the parade, or that the parade officer deliberately directed the attention of the witnesses to the appellant. PW10’s evidence was that the appellant was informed of his rights, chose his position and expressed satisfaction with the process. I have looked at the identification parade report dated 1st November 2019. It clearly stated that the witnesses were in the locked crime branch office before the identification, and thereafter at the customer care shade to ensure no communication was done. In his remarks upon being asked if he was satisfied with the conduct of the parade, the appellant affirmed positively and signed the said report. 50.In Sebaganga & another v Republic (supra), the Court of Appeal stated that where there is nothing on record to suggest a breach of the identification parade rules, a complaint against the parade cannot stand. I take the same view here. The appellant’s allegations against the parade were not supported by sufficient evidence to displace PW10’s testimony and the parade report. I therefore find that the parade was properly conducted and that the identification evidence was safe. Consequently, I find that the appellant was positively identified as one of the perpetrators. The identification was not a mere dock identification; it was preceded by an identification parade conducted less than one month after the robbery. The amended grounds challenging visual identification, the first report and the identification parade therefore fail. 51.The second issue is whether the prosecution proved the ingredients of robbery with violence beyond reasonable doubt. The appellant submitted that theft, being a central ingredient of robbery with violence, was not proved against him. He argued that although the complainants alleged loss of property, no stolen item, money, firearm or other incriminating exhibit was recovered from him. He further submitted that the alleged stolen items were not identified by serial numbers, receipts, inventories or distinctive marks, and that there was no nexus between him and the alleged pistol. 52.Section 296(2) of the Penal Code provides as follows:“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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 53.In Sebaganga & another v Republic (supra), the Court of Appeal cited with approval the principle that the elements under section 296(2) are to be read disjunctively and that ‘one element is enough to found a conviction.’ It follows that the prosecution need not prove all the aggravating circumstances under the section. Proof that the offender was armed, or was in company, or used personal violence is sufficient. 54.In the present case, PW1 testified that he was robbed of foreign currency, a watch and a wallet. PW2 testified that she was robbed of a Camon X phone. PW3 testified that he was robbed of two mobile phones and Kshs. 850/=. Their evidence on loss of property was not materially shaken in cross-examination. The appellant argued that the items were not identified by serial numbers, receipts or distinctive marks. That argument would have carried greater weight if the prosecution had recovered items and sought to prove that they were the very items stolen from the complainants. However, no recovered property was produced and the prosecution did not rely on the doctrine of recent possession. The issue was therefore not whether recovered items could be traced to the complainants, but whether the complainants’ evidence proved that property was stolen from them during the violent incident. I do find that the element of theft was proved. 55.The prosecution also proved the aggravating circumstances under section 296(2). PW1, PW2, PW3 and PW4 all testified that the attackers were two. The offenders were therefore in company. PW1, PW2, PW3 and PW4 testified that one attacker was armed with a gun. PW1 was shot during the incident. PW6 heard about three gunshots and saw the attackers flee on a motorcycle. PW9, the ballistic examiner, confirmed that the spent cartridges and bullet examined were of 9mm calibre. PW11 produced the P3 form and testified that PW1 had chest injuries caused by a bullet and had undergone surgery. 56.The appellant argued that no firearm was recovered from him or produced in court. However, recovery of the firearm was not an ingredient of the offence. The prosecution was required to prove, through credible evidence, that a dangerous weapon was used. The oral evidence of PW1, PW2, PW3 and PW4 on the use of a gun was corroborated by the evidence of PW6 on gunshots, PW9 on the spent cartridges and bullet, and PW11 on the gunshot injuries sustained by PW1. I therefore find that the use of a firearm was proved notwithstanding the non-recovery of the weapon. 57.The appellant further submitted that the ballistic evidence did not connect him personally to the firearm. That submission is correct to the limited extent that PW9 did not testify that the appellant owned, possessed or fired the firearm. To me, however, the ballistic evidence was not tendered as evidence of ownership or possession of the firearm by the appellant. It was tendered to corroborate the evidence that a firearm was used during the robbery. The link between the appellant and the robbery was supplied by the identification evidence of PW1, PW2 and PW3, which I have already found to be safe. I therefore find that the ingredients of robbery with violence were proved beyond reasonable doubt. 58.The third issue is whether the evidence on record, including the appellant’s defence and the alleged investigative gaps, raised reasonable doubt. The appellant complained that the conviction was founded on mere suspicion, that the investigating officer did not recover any stolen items or prepare inventories, and that the medical and ballistic evidence did not identify him as the offender. He also maintained that his defence was not properly considered. 59.It is settled that suspicion, however strong, cannot found a conviction. In Aika alias Jirani v Republic (Criminal Appeal E018 of 2024) [2025] KEHC 16621 (KLR), the court stated that “suspicion, however strong, cannot be used as evidence.” However, the present conviction was not based on suspicion. It was based on the direct evidence of PW1, PW2 and PW3, the identification parade, and the corroborative evidence that a violent robbery occurred. 60.The law is also clear that not every discrepancy or investigative gap is fatal. In Khalumba v Republic (Criminal Appeal E013 of 2023) [2024] KEHC 14449 (KLR), the court cited Sigei v Republic [2023] KECA 154 (KLR), where the Court of Appeal stated as follows:“In assessing the impact of contradictory statements or discrepancies on the prosecution’s case, our understanding is that firstly, for contradictions to be fatal, it must relate to material facts. Secondly, such contradictions must concern substantial matters in the case. Thirdly, such contradictions must deal with the real substance of the case.” 61.I have considered the record. PW1, PW2 and PW3 were consistent on the material particulars. They placed the robbery on 3rd October 2019. They stated that the attackers were two. They stated that one attacker was armed with a gun and that PW1 was shot. PW1, PW2 and PW3 also stated that property was stolen from them. Their evidence was corroborated by PW6 on the gunshots, PW9 on the ballistic exhibits, and PW11 on the injuries sustained by PW1. The fact that PW4, PW5 and PW6 did not identify the appellant did not contradict the evidence of PW1, PW2 and PW3. PW4 was afraid and could not remember the faces of the attackers. From the record, PW5 was not an eyewitness to the robbery. PW6 heard the commotion and saw the attackers flee. Those witnesses were not relied upon as identifying witnesses. The evidence of PW8, the investigating officer, was also not worthless merely because nothing was recovered from the appellant. PW8 explained the complaint, the items allegedly stolen, the arrest of the appellant, the identification parade and the forwarding of the bullet and spent cartridges for ballistic examination. His evidence provided the investigative chain. It was not the sole basis of conviction, but it was relevant and consistent with the prosecution case. 62.As for the medical evidence, PW11’s testimony was directly relevant to the element of violence. He produced the P3 form and testified that PW1 sustained chest injuries caused by a bullet and had undergone surgery. The medical evidence did not identify the appellant, but it corroborated the evidence that violence was used during the robbery. It was therefore not a red herring. 63.I have also considered the appellant’s defence. He gave unsworn evidence and denied committing the offence. He stated that he came from Laikipia County, that he had worked as a co-driver at Triple A Company, and that around the material time he had been hired to accompany a lorry from Nanyuki to Naromoru to supply quarry stones. He further stated that he was arrested at a club on 30th October 2019 and that police demanded that he surrender a gun which he did not have. 64.The burden of proof in a criminal trial rests on the prosecution and never shifts to the accused person. In Wagula v Republic (Criminal Appeal 39 of 2023) [2024] KEHC 13663 (KLR), the court stated that the prosecution bears a legal burden that can never be shifted to the defence. The court further stated that where an alibi is raised, the prosecution always has the burden of disapproving an alibi. 65.Bearing that principle in mind, the offence occurred on 3rd October 2019, while the appellant’s evidence substantially focused on his arrest on 30th October 2019. He did not give clear particulars placing him away from the scene at the time of the robbery. In any event, the prosecution evidence, especially the identification by PW1, PW2 and PW3 and the subsequent identification parade, displaced his denial, which did not raise reasonable doubt. 66.The appellant also alleged violation of his right to a fair trial. Article 50(2) of the Constitution provides that :“Every accused person has the right to a fair trial.”The appellant did not demonstrate the specific manner in which that right was violated. The record shows that he pleaded to the charge and participated in the trial. He had the chance to cross-examine the witnesses. He was placed on his defence and gave his defence, mitigated and subsequently exercised his right of appeal. 67.The fourth issue concerns sentence. The appellant submitted that the sentence of life imprisonment was harsh, unlawful and inconsistent with recent developments in sentencing jurisprudence. He urged the court to consider the Sentencing Policy Guidelines, the objectives of sentencing, his life expectancy, and Article 50(2)(p) of the Constitution. The respondent partially conceded the appeal on sentence and proposed that the life sentence be substituted with a custodial term of forty years. 68.The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code. The statutory sentence under that provision is death. The trial court sentenced him to life imprisonment. The respondent’s concession that life imprisonment has been declared unconstitutional is anchored on as a general proposition is not supported by the current binding position of the Supreme Court. 69.In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), the Supreme Court held that the life imprisonment sentence remained lawful. In Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR), the Supreme Court ordered that the respondent therein shall serve life imprisonment as sentenced by the Magistrates’ Court. Although those decisions arose from sexual offences, they settle the proposition that life imprisonment has not been generally abolished or rendered unconstitutional in every case. 70.The appellant also invoked Article 50(2)(p) of the Constitution, which guarantees an accused person the right ,“to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”I have considered that provision. The appellant did not demonstrate that the punishment prescribed for robbery with violence under section 296(2) of the Penal Code changed between the date of commission of the offence and the date of sentencing. Article 50(2)(p) is therefore not applicable in the manner urged by the appellant. 71.I have also considered the gravity of the offence. The appellant was identified as the armed attacker. He acted in company with another person. A firearm was used. PW1 was shot and underwent surgery. PW1, PW2 and PW3 were robbed of their property. The attack occurred in broad daylight and involved a high degree of violence. The sentence of life imprisonment was less severe than the statutory sentence of death under section 296(2) of the Penal Code. 72.A concession by the respondent on sentence does not bind the court where it is not supported by law or by the circumstances of the case. In the circumstances, I find no legal or factual basis for substituting the sentence of life imprisonment with a term of forty years. 73.Consequently, the appeal against conviction and sentence lacks merit. The conviction is hereby upheld and the sentence of life imprisonment is affirmed. 74.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 10th DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaMr. Mwangi for ODPP present.Applicant present online.