https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6597

Mundia v Director of Public Prosecution (Criminal Appeal E086 of 2023) [2026] KEHC 6597 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6597 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E086 of 2023 S Mbungi, J May 15, 2026 Between Elijah Waithaka Mundia Appellant and Director of Public Prosecution Respondent (Being an appeal against the conviction and sentence by Hon. I. Gichobi dated 2nd June 2023 and delivered by Hon. P. M. Kiama (SPM) on 6th June 2023, and the sentence passed on 6th July 2023 in Kigumo Criminal Case No. 4 of 2021, Republic v Elijah Waithaka Mundia) Judgment 1.The appellant herein was charged in the trial court with three counts of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of Count I were that on 11th May 2020 at Giathumbi Village, Gathunya Sub-location, Wahundura Location in Mathioya Sub-County within Murang’a County, jointly with others not before the court, while armed with crude weapons namely a crowbar and a knife, the appellant robbed Ronald Ndirangu Githui of an Infinix phone Smart 2 valued at Kshs. 10,000/= carrying SIM cards 072xxxxx35 and 078xxxxx20 and a torch valued at Kshs. 800/=. 2.The particulars of Count II were that on the same date and place, while similarly armed, the appellant robbed Grace Wahuini Ndirangu of cash Kshs. 6,000/=, a Tecno phone W3 valued at Kshs. 8,000/= carrying SIM cards 072xxxxx54 and 076xxxxx57 , and a further Kshs. 11,398/= by transferring the same from her Equity account number 076xxxxx57 to account number 078xxxxx057 . 3.The particulars of Count III were that on the same date and place, while similarly armed, the Appellant robbed Nash Githui Ndirangu of a Tecno phone F1 valued at Kshs. 6,500/= carrying SIM card 011xxxxx25 . In all three counts, it was alleged that immediately before or immediately after the time of such robbery, the appellant threatened to use actual violence. 4.A plea of not guilty was entered and the matter proceeded to full trial. The prosecution called five witnesses in support of its case, while the appellant testified as the only defence witness. Facts at trial 5.PW1, Ronald Ndirangu Githui, testified that on the material night he returned home at about 8.00 p.m., had supper with his family and thereafter retired to bed. That at around 3.00 a.m., he heard a loud bang at the rear side of the house. He stated that the rear wooden door was broken and an intruder entered the house. PW1 testified that the intruder pushed him and his wife into the bedroom. He described the intruder as carrying a crowbar, a knife, a red torch and a black bag and as wearing blue jeans, a black leather jacket, brown safari boots and a blue muffler. That the accused slapped him, demanded money and ransacked clothes in the bedroom while demanding mobile phone PIN numbers. He testified that the intruder stole cash and phones from the house. PW1 further testified that the intruder’s face was not fully concealed and that he was able to observe him using the lights in the house. He identified the appellant in court as the person who robbed them and also identified the recovered items produced before the court. In cross-examination, PW1 stated that the house had been locked before the robbery and that the intruder gained entry through the rear door after breaking it. He maintained that there was sufficient lighting in the house and that he was able to observe the robber during the incident. He further stated that the accused was armed and that the incident took some time. 6.PW2, Nash Githui Ndirangu, testified that he was aged sixteen years. He stated that on the material night he was asleep in his room when the accused entered and demanded for his phone which he surrendered. He described the robber as having a beard and as wearing a black jacket while carrying a bag, a crowbar and a red torch. PW2 testified that he later identified the appellant as the person who entered his room and took his phone. He also identified some of the items produced before the court. In cross-examination, PW2 stated that his encounter with the robber was brief and that he panicked during the incident. He further stated that he heard arguments about money from his parents’ room. 7.PW3, Grace Wahuini Ndirangu, testified that on the material night she was asleep in the house together with PW1 and PW2 when they heard a loud bang and realized that the rear door had been broken. She stated that she followed PW1 towards the rear side of the house and found the accused pushing PW1 back into the bedroom. PW3 described the robber as carrying a torch and wearing a black leather jacket, blue jeans and brown boots. She further stated that the robber had a crowbar and a knife inside a black bag. PW3 testified that the robber forced them to sit on the floor in the bedroom and demanded money while threatening PW1. She stated that she gave the robber Kshs. 2,000/= and that the robber later took more money from a jacket in the bedroom. PW3 further testified that the robber stole phones and demanded for PIN numbers. PW3 testified that the robber’s face was not concealed and that she was able to see him using the corridor and bedroom lights. She further testified that she attended an identification parade at Kiriaini Police Station and identified the appellant. In cross-examination, PW3 maintained that the lights in the corridor and bedroom enabled her to see the accused clearly since he remained in the bedroom for some time. 8.PW4 was Chief Inspector Oscar Mutakha. He testified that he conducted an identification parade at Kiriaini Police Station. He stated that the accused was informed of the purpose of the parade and was allowed to choose his position among the parade members. PW4 testified that the parade comprised nine members in addition to the accused. He further stated that the identifying witnesses were called separately and were kept away from the parade area before the exercise. PW4 testified that PW1 and PW3 separately identified the appellant by touching him. He produced the identification parade forms as exhibits and stated that the appellant did not raise any objection during the exercise. He further testified that the appellant’s mother was present during the identification parade. In cross-examination, PW4 maintained that the identification parade was properly conducted and that the parade members were of similar height, build and complexion. He further stated that the identifying witnesses were kept separate before the exercise and that the appellant signed the parade forms. 9.PW5, Chief Inspector Benard Mwiti, testified that the robbery was reported to the police in the morning after the incident. He stated that he visited the scene and found that the rear wooden door had been broken and that the bedroom had been ransacked. PW5 testified that investigations led to the tracing of one of the stolen phone lines to Gakindu market. He stated that police officers proceeded to the suspect’s house where several items matching the descriptions earlier given by the complainants were recovered. The items recovered included blue jeans, a black jacket, a blue muffler, brown boots, a red torch, a knife, a black backpack, gloves and cash. PW5 also produced inventory forms, photographs and an Equity Bank statement in evidence. He testified that after the accused was arrested he was taken for an identification parade where he was identified by the complainants. In cross-examination, PW5 maintained that the recovered items matched the descriptions given by the complainants and that investigations linked the appellant to the offence. He further stated that the scene examination confirmed forcible entry into the complainants’ house. 10.That marked the close of the prosecution case. The trial magistrate ruled that a prima facie case had been established against the accused persons and accordingly put them on his defence. Defence Case 11.DW1 was the appellant, Elijah Waithaka. He gave sworn testimony in his defence and stated that on 31.12.2020, he was arrested at around 11.00 a.m. by police officers who informed him that he was required at Kiriaini Police Station. That upon arrival at the station, he found many police officers and members of the public present. That he was later informed that an identification parade would be conducted, which according to him, was not properly conducted. He stated that there were many police officers around the parade area and questioned whether the parade members were of similar appearance. He further stated that the identifying witnesses could have seen him before the parade exercise. According to the appellant, the parade members differed in size and complexion. In cross-examination, the appellant maintained that he had not committed the offence and denied robbing the complainants. He further maintained that the identification parade was irregular and that he had been wrongly implicated in the matter. 12.That marked the close of the defence case. Upon considering the entirety of the evidence on record, the trial court, in its judgment found the appellant guilty and sentenced him to death. The Appeal 13.Being dissatisfied with both conviction and sentence of the trial court, the appellant lodged the present appeal vide a petition of appeal dated 25th July 2023, citing the following grounds: a.That, the learned trial magistrate erred in matters of law and facts by arriving at a conviction without taking into account that the first report was not clear and did not give the descriptions of the alleged perpetrators of the heinous offence.b.That, the learned trial Magistrate erred in matters of law and fact by basing a conviction relying on poor identification at night on a lighting that was not clear thus violating the Turnbull guidelines.c.That, the learned trial magistrate erred in matters of law and fact by relying on an identification parade that was poorly conducted and which did not follow the laid down procedures of Chapter 46 of the Police Standing Orders.d.That, the learned trial magistrate erred in matters of law and fact by failing to find that the mode arrest of the appellant had no connection with the commitment of the alleged offence.e.That, the learned trial magistrate erred in both matters of law and facts by failing to find that the prosecution evidence was marred with contradictions, inconsistences and discrepancies.f.That, the learned trial magistrate erred in matters of law and facts by sentencing I the appellant without clearly analyzing the whole evidence pursuant to Section 168 and 169 of the CPC Cap 75 Laws of Kenya, failing to fully consider my submissions and plausible defense, and shifted the burden of prove against I the appellantg.That, the learned trial magistrate erred in matters of both law and facts by meting a maximum mandatory harsh death sentence without considering my plausible mitigation and circumstances of the offence.h.That, the appellant would adduce more grounds during the hearing of this appeal. 14.The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 10th November 2025 and submissions dated 5th February 2026, filed by the respondent; both of which this court has carefully considered. Appellant’s Submissions 15.The appellant submitted that the prosecution failed to discharge the burden of proof required in criminal cases and that the conviction was founded on insufficient, contradictory and unreliable evidence. He contended that the learned trial magistrate erred both in law and fact by relying on evidence of visual identification which, in the circumstances of the case, did not meet the threshold required to sustain a conviction for the offence of robbery with violence. 16.He further submitted that the conditions at the time of the alleged robbery were not conducive for positive identification and that the possibility of error could not be ruled out. The appellant further challenged the identification parade conducted by PW4, contending that the same was irregular, improperly conducted and contrary to the applicable legal requirements governing identification parades since the parade members were not of similar physical appearance and that there existed a possibility that the identifying witnesses may have seen the appellant prior to the parade exercise, thereby compromising its evidential value. 17.The appellant averred that no stolen property was recovered in his possession and that the prosecution case was purely circumstantial and founded on suspicion. Reliance was placed on the principle that suspicion, however strong, cannot form the basis of a criminal conviction. It was further submitted that material inconsistencies and contradictions existed in the testimonies of the prosecution witnesses regarding the description of the assailant, the circumstances of the robbery, and the recovery of the alleged exhibits. 18.Counsel for the Appellant also faulted the investigations conducted by the police, submitting that crucial witnesses were not called to testify and that the prosecution failed to establish an unbroken chain connecting the appellant to the offence. It was contended that the trial court failed to properly analyse the defence evidence and thereby arrived at an erroneous conclusion. 19.On sentence, the Appellant submitted that the custodial sentence imposed by the trial court was harsh and excessive in the circumstances. He argued that the learned trial magistrate failed to adequately consider his mitigation and the fact that he was allegedly a first offender. The appellant therefore prayed for this court to allow the appeal, quash the conviction and set aside the sentence. Respondent’s Submissions 20.On whether the prosecution proved its case to the required standard, the respondent submitted that the prosecution proved the case against the appellant beyond reasonable doubt. Counsel outlined the ingredients of robbery with violence under Section 295 as read with Section 296(2) of the Penal Code. Counsel argued that all three complainants gave detailed descriptions of the stolen phones and money, and PW5 confirmed the report made at the station. That although the appellant was alone during the attack, counsel submitted that the other two ingredients were proved, as PW1 and PW3 testified that the perpetrator forcefully broke into their house, slapped PW1, and was armed with a crowbar and a knife. 21.On identification, counsel submitted that PW1 and PW3 gave very clear evidence about the identity of the perpetrator. Despite the offence being committed at night, counsel argued that the two witnesses had very close interactions with the appellant for about an hour in well-lit surroundings from electric lights in the house as well as the torch used by the perpetrator. Counsel further submitted that the witnesses’ description of the attacker was so accurate that the trial court was convinced the identification was proper, and that they positively identified the appellant in a proper identification parade. Counsel averred that the items of clothing worn by the attacker, namely a blue muffler with white stripes, a black leather jacket, a blue pair of jeans, brown safari boots, a crowbar, a black backpack, and a red torch, were all recovered from the appellant’s house. 22.On whether the trial court ignored a plausible defence tendered, the respondent submitted that the appellant, in his defence, tried to show that he was framed. However, counsel argued that the appellant could not demonstrate how the complainants, who were attacked and robbed, were able to single him out without a pre-existing grudge. Counsel submitted that the alleged grudge with the investigating officer, PW5, was found by the trial court to be not credible, and that from the judgment, it is clear that the court indeed weighed the defence raised and found that the same did not cast any doubt on the prosecution case. 23.On the sentence, counsel submitted that sentencing is a matter of judicial discretion within the confines of the law, citing Pamella Akoth Owuor v Republic [2008] eKLR for the proposition that where discretion is judiciously and responsibly exercised within the scope defined by law, the sentence as imposed is right. Counsel argued that in the particular circumstances of this case, the court exercised its discretion responsibly by considering all relevant factors, including the fact that the appellant had proven previous records and was therefore a repeat offender, and that the appellant did not offer any mitigating factors. Counsel submitted that the sentence given was both legal and commensurate to the offences committed, and that no ground had been raised to challenge the sentencing discretion of the trial court. Counsel therefore prayed for this court to dismiss the appeal and uphold both the conviction and sentence. Analysis and Determination 24.This being a first appeal, this Court is obligated to subject the entire evidence tendered before the trial court to a fresh and exhaustive re-evaluation and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The duty of a first appellate court was succinctly stated in Okeno v Republic where the Court held that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination and the appellate court’s own decision on the evidence.” 25.I have carefully considered the lower court record, the judgment of the trial court, the grounds of appeal, and the submissions filed by the parties. In my view, the issues that arise for determination are:i.Whether the prosecution proved the offence of robbery with violence contrary to Section 296(2) of the Penal Code beyond reasonable doubt;ii.Whether the prosecution evidence was marred by material contradictions, inconsistencies, or discrepancies;iii.Whether the trial court properly considered the Appellant’s defence and did not shift the burden of proof;iv.whether the sentence imposed was lawful, harsh, or excessive. Issue I: Whether the prosecution proved the offence of robbery with violence beyond reasonable doubt 26.The offence of robbery with violence is provided for under Section 296(2) of the Penal Code. The ingredients constituting the offence were authoritatively set out in Johanna Ndungu v Republic [1996] eKLR, where the Court of Appeal held that the offence is established where the following ingredients are proved:a.that the offender is armed with any dangerous or offensive weapon or instrument; orb.that the offender is in company with one or more other person or persons; orc.that at or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses any other violence to any person.Similarly, in Dickson Mwangi Gathogo v Republic [2021] eKLR, the Court of Appeal reaffirmed that the prosecution need only prove one of the three ingredients to secure a conviction for robbery with violence. 27.The evidence tendered before the trial court established that on the material night, an intruder forcibly broke into the complainants’ house through the rear door while armed with a crowbar and a knife. PW1 testified that the assailant slapped him, demanded money, ransacked clothes, and stole cash and mobile phones. PW2 and PW3 corroborated the occurrence of the robbery and the threats issued by the assailant. PW5, the investigating officer, confirmed upon visiting the scene that the rear wooden door had been broken and the house ransacked. Their testimont was that the assailant was armed with offensive weapons namely a crowbar and a knife and actual violence was used against PW1. Property comprising money and mobile phones was stolen from the complainants. The evidence of PW1, PW2, and PW3 was consistent and mutually corroborative on these material particulars. 28.The appellant challenged both the visual identification by the complainants during the night robbery and the identification parade conducted by PW4. He argued that the conditions at the time were not conducive for positive identification and that the identification parade was irregular and oppressive. 29.The law regarding visual identification is settled. Courts are required to exercise the greatest caution before basing a conviction on such evidence, particularly where the circumstances were difficult. In Wamunga v Republic [1989] KLR 424, the Court of Appeal stated:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully.” 30.Likewise, in R v Turnbull [1976] 3 All ER 549, the court laid down the well-known guidelines requiring courts to examine closely the prevailing conditions including lighting, proximity, duration of observation, whether the witness had any special reason to remember the accused, and the time elapsed between the original observation and the subsequent identification. These guidelines have been consistently adopted in Kenya, as reaffirmed in Maitanyi v Republic [1986] KLR 198, where the Court stated that it is at least essential to ascertain the nature of the light available, what sort of light, its size, and its position relative to the suspect, as all these are important matters helping to test the evidence with the greatest care. 31.In the present case, PW1 testified that although the robbery occurred at night, there was sufficient lighting from the corridor and bedroom lights which enabled him to observe the assailant clearly. He testified that the assailant’s face was not fully concealed and described in detail the clothing worn by the robber, namely blue jeans, a black leather jacket, brown safari boots, and a blue muffler, while carrying a red torch, black bag, crowbar, and knife. PW3 equally testified that the robber’s face was not concealed and that she was able to observe him through the lighting within the house. Her description of the robber’s attire and the items he carried substantially matched that given by PW1. The trial court also noted that during the trial, whenever prosecution witnesses gave physical descriptions of the robber, the court requested the appellant to remove his mask, and the descriptions accurately fitted the appellant. 32.PW1 and PW3 testified that the assailant remained in the house for approximately thirty to forty minutes while demanding money, ransacking clothes, and demanding PIN numbers from the complainants. The complainants therefore had ample opportunity to observe him. The proximity was also close, with PW1 forced to sit on the floor about two metres away from where the appellant was ransacking clothes. Further corroboration arose from the recovery of several items from the appellant’s house by PW5 including blue jeans, a black jacket, a blue muffler, brown boots, a red torch, a knife, and a black backpack, all matching the descriptions consistently given by the complainants. 33.With regard to the identification parade, PW4 testified that the appellant was informed of the purpose of the parade, allowed to choose his position among the parade members, and that his mother was present during the exercise. The parade consisted of nine members of similar height and physical complexion. The identifying witnesses, PW1 and PW3, were kept away from the parade area before the exercise and were called separately. Each positively identified the appellant by touching him. The parade forms were produced before the trial court, and PW4 stated that the appellant did not raise any objection during the exercise. The appellant’s allegation that the parade was oppressive and that he was forced to sign the forms is not supported by any evidence. 34.Upon my own analysis of the evidence, I am satisfied that the prevailing conditions favoured positive identification and that the identification parade was properly conducted. This ground of appeal therefore fails. Issue II: Whether the trial court properly considered the appellant’s defence and did not shift the burden of proof 35.The appellant argued that the trial court failed to properly analyse the evidence and consider his defence, and that the court shifted the burden of proof onto him. The appellant’s defence consisted principally of a denial and an allegation that he was framed by PW5 due to a grudge arising from a previous dispute. He also challenged the propriety of the identification parade. He did not tender any evidence explaining the recovery of items matching the complainants’ descriptions from his residence, nor did he call his mother, who had been present during identification to support his allegations. 36.The trial court was under a duty to consider the defence alongside the prosecution evidence. Upon perusal of the impugned judgment, it is evident that the learned trial magistrate duly considered the appellant’s defence but found the same incapable of displacing the prosecution case, which remained cogent, consistent, and overwhelming. 37.The appellant further alleged that the burden court properly appreciated that the burden of proof in criminal of proof was shifted onto him. I find no basis for that complaint. The trial cases always rests upon the prosecution. In Republic v Waswa alias Junior [2024] KEHC 11988 (KLR) held thus:“The burden of proof lies on the Prosecution throughout the trial. That burden of proof does not shift to the accused to prove his innocence. That is the only way fair trial of the accused can be guaranteed as stipulated in Article 50(2) of the Constitution. It follows that the accused is under no duty to give any evidence in defence to rebut the Prosecution's case. The accused herein has the right to remain silent and that the Court would decide the case on the basis of the evidence adduced, without making any adverse inference against him." 38.The trial court’s judgment shows that it properly understood and applied this principle. The finding that the appellant’s defence did not raise a reasonable doubt does not amount to a shifting of the burden of proof. This ground of appeal therefore fails. Issue III: Whether the sentence imposed was lawful, harsh, or excessive 39.The appellant was sentenced to death on Count I, with the sentences on Counts II and III, kept in abeyance. The appellant contended that the sentence was harsh and excessive, and that the trial court failed to adequately consider his mitigation. 40.Section 296(2) of the Penal Code provides that 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. 41.The principles upon which an appellate court may interfere with a sentence are well settled. In Wanjema v Republic [1971] EA 493, the Court held:“An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some wrong material, or acted on a wrong principle.” 42.In the present case, the trial court considered the appellant’s mitigation before passing sentence. The appellant prayed for leniency, stating that he had come to court many times and had been denied bond. He also opposed the previous records that the prosecution had presented. The trial court also considered a pre-sentence report. The prosecution presented records showing that the Appellant had previous convictions: in Mukurweini Law Courts Criminal Case No. 516 of 2010 for robbery with violence for which he was sentenced to death, in Mukurweini Law Courts Criminal Case No. 518 of 2010 for robbery with violence for which he was sentenced to death, in Othaya Law Courts Criminal Case No. 253 of 2020 for robbery with violence and indecent act for which he was sentenced to life imprisonment and thirty years respectively, and in Othaya Law Courts Criminal Case No. 70 of 2011 for handling stolen goods for which he was sentenced to ten years imprisonment. The Appellant was clearly not a first offender. He was a repeat offender with a long history of violent crime. 43.This Court finds that the trial court properly exercised its discretion in imposing the death sentence. The trial court considered the appellant’s mitigation but found that the gravity of the offence and the appellant’s previous criminal record justified the maximum penalty. The death sentence for robbery with violence is lawful under the Penal Code, and the trial court did not act on any wrong principle. The sentence is neither harsh nor excessive in the circumstances of this case. The trial court was entitled to impose the death sentence, and this Court finds no reason to interfere. This ground of appeal therefore fails. Conclusion 44.In the result, the appeal against both conviction and sentence is dismissed in its entirety. The conviction and sentence by the trial court is upheld. 45.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 15TH DAY OF MAY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angong’a/VelmaMr. Ndege for the ODPP present online.Appellant present online.A copy of the Judgment be sent to the Appellant in Naivasha maximum prison.