https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8335

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CRIMINAL APPEAL NO. E039 OF 2023** **ERICK OMONDI MBOYA….……………………………….APPELLANT** **VERSUS** **REPUBLIC………………………….………………….…….RESPONDENT** *(Being an appeal from the conviction and sentence* *of* ***Hon. S.N. Telewa, Senior Resident Magistrate*** *delivered and imposed on 3rd November, 2021 and 5th November, 2021 respectively in Kisumu Criminal Case No. 525 of 2018).* **JUDGEMENT** 1. **THE CHARGE.** 2. **Erick Omondi Mboya** (hereinafter referred to as “the Appellant”) was charged before the trial court with the offence of robbery with violence contrary to *Section 295* as read with *Section 296(2)* of the *Penal Code, Cap 63 Laws of Kenya.* 3. It was stated in the particulars of the offence that between the night of 9th and 10th of April, 2016 at Pandpieri Oboch village in Kisumu Central District within Kisumu County, jointly with others not before the court, while armed with dangerous weapons namely a machete and an iron bar, the Appellant and his confederates robbed Grace Lorna Chore of one television set make Sony LCD 32”, one GoTV decoder serial number 4623271789, a mobile phone make Nokia model 1616-2 IMEI number 354836041951608, one complete 6kg K-Gas, a black suitcase, two iron boxes and assorted personal documents all valued at Ksh.57,000/-and before the time of such robbery, killed the said Grace Lorna Chore. 4. In the alternative count, the Appellant was charged with the offence of handling stolen goods contrary to *Section 322(1*) as read with *322(2)* of the *Penal Code, Cap 63 Laws of Kenya.* 5. The particulars of the offence for the alternative charge were that on the 22nd of April, 2016 at Pandpieri village in Kisumu Central District within Kisumu County, otherwise than in the course of stealing, the Appellant dishonestly received one 6kg meko K-Gas cooker, one GoTV decoder serial number 4623271789, one mobile phone make Nokia model 1616-2 IMEI number 354836041951608, two iron boxes make Mikachi and Ramtons a black suitcase and assorted personal documents knowing or having reason to believe them to be stolen goods. 6. The Appellant denied the charges, which then called for a full trial. 7. The prosecution case was founded on the evidence of 10 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence. 8. **GROUNDS OF APPEAL.** 9. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the undated petition of appeal. The grounds of appeal are as follows: 10. **THAT, the learned trial Magistrate erred in law and in fact in conducting the proceedings that violated the rights of the Appellant as per the provisions of the laws of Kenya hence null and void.** 11. **THAT, the learned trial Magistrate erred in law and in fact in arriving at a decision while relying on evidence that was full of contradictions and without analyzing the same as prescribed by the law of the land.** 12. **THAT, the learned trial Magistrate erred in law and in fact in imposing a death sentence which is manifestly harsh, excess, unlawful and unconstitutional regarding the circumstances in which the evidences were committed hence hull and void.** 13. **THAT, the learned trial Magistrate erred in law and in fact in rejecting the Appellant’s alibi defence which was also not accorded facilities and enough time to prepare for the same hence un-procedural.** 14. **THAT, the learned trial Magistrate erred in law and in fact in considering extraneous factors while summing up her decision making.** 15. **THAT, the death sentence was abolished in *Article 6* of the International Covenant.** 16. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence. 17. **THE DUTY OF THIS COURT.** 18. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see ***Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570;*** and***Peter v Sunday Post [1958] EA 424*.**) 19. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence. 20. **THE PROSECUTION CASE.** 21. The prosecution presented and relied upon the testimony of ten (10) witnesses in support of its case before the trial court. 22. The first prosecution witness was **Prisca Anyango** (PW1). In her testimony before the trial court, PW1 stated that she was a businesswoman residing in Nyalenda, having previously resided at Nakuru. She recalled that on 10th April, 2016, a Sunday, she travelled to Kisumu and arrived at the bus park at about 7.00 p.m., whereupon her niece informed her that her brother had been involved in an accident. She proceeded to the District Hospital and found that he had been transferred to Jaramogi Oginga Odinga Teaching and Referral Hospital. She further testified that she attempted, without success, to reach her mother-in-law by phone. 23. PW1 testified that at about 10.00 p.m., after informing her husband, she hired a tricycle to her home in Nyalenda. Upon arrival, she found the gate open and, as she entered the compound, she noticed a person clad in a yellow and black dress, whom she recognized as her mother-in-law. She stated that she screamed and called a neighbour, believing that her mother-in-law had fallen. The neighbours responded and, upon checking, informed her that the deceased had died earlier. 24. It was PW1’s further evidence that other neighbours, including one **Mzee Arthur,** gathered at the scene and the police were notified. Upon arrival, the police turned the body, and she observed injuries on the deceased, including a cut on the lower lip, the right shoulder and the stomach. She noted that the body was motionless and was subsequently removed to the mortuary. PW1 spent the night at a neighbour’s house, after which she later recorded her statement at Kisumu Central Police Station. 25. PW1 further testified that she later learnt, during the burial arrangements, that a suspect had been arrested, although she did not know the said person. 26. During cross-examination, she stated that she only saw the Appellant for the first time in court. She also explained that one had to pass through the compound of a neighbour named **Alice** to access her mother-in-law’s residence, and that although she initially screamed without response, she went to **Alice’s** house, who upon coming out also screamed, thereby attracting other neighbours. 27. The second prosecution witness was **Arthur Otieno** (PW2), who testified and told the trial court that he was a resident of Nyalenda, a retired hotelier and a local community security leader. 28. PW2 recalled that on the night of 10th April, 2016 at about 10.30 p.m., while in his house, he heard screams emanating from the home of his in-laws with whom they shared a fence. He proceeded to establish the cause of the alarm and, finding the main gate locked, accessed the compound through the rear gate, where he found PW1 and other relatives already gathered. 29. PW2 testified that PW1 informed him that she had found the deceased, **Grace,** lying outside. He proceeded to the scene and observed the body of his sister-in-law lying near the rear gate. He noted that the deceased had visible injuries, including blood oozing from the mouth and ears, as well as deep cuts on the face and arm, and that she was lying on her side. He further observed that the blood had clotted, suggesting that the injuries were not recent. 30. It was PW2’s further evidence that he instructed members of the public who had gathered at the scene not to interfere with the body as they awaited the arrival of the police. He stated that they did not enter the house. The police later arrived, processed the scene, and removed the body to Jaramogi Oginga Odinga Teaching and Referral Hospital for post-mortem examination. In his view, the deceased had been brutally murdered using a sharp object. 31. PW2 further testified that he later learnt that a suspect had been arrested and detained at Kisumu Central Police Station. He visited the police cells and confirmed that the suspect was a person known to him. He subsequently recorded his statement at Nyalenda Police Post the following day. 32. During cross-examination, PW2 stated that he was familiar with the deceased’s children and that his home was adjacent to that of the deceased. He also confirmed that there was a crowd at the scene and that he first found PW1 present. He stated that he was not aware of any land dispute within the deceased’s family. 33. In her testimony before the trial court, PW3, **Beatrice Adhiambo Chore,** testified that she resided in Kisumu and received a call from her brother **Clifford** informing her that his wife had discovered that their mother had been murdered. She immediately travelled to Nyalenda by motorcycle and, upon arrival, found several relatives present, including their grandmother **Alice,** an uncle and PW1. She stated that she was initially unable to access the rear gate as the area had been secured as a crime scene, but she could observe the body of the deceased lying on one side in a pool of blood with visible cuts on the forehead, face and hands. 34. PW3 further testified that upon the arrival of the police, she accompanied them into the compound and formally identified the body of the deceased. She stated that photographs were taken and the body was subsequently removed to the mortuary. She added that the door to the house was found wide open and, upon entering the house with the police, they observed that several household items were missing. She enumerated the missing items as including a Samsung 32-inch television set, a Go-TV decoder, a meko gas cylinder, two electric irons of Mikachi and Ramtons make and a black suitcase belonging to her brother **Alphonse** which contained documents. She also noted that a phone cover was missing. She stated that the police recorded the details of the missing items and instructed her to secure the house thereafter. 35. PW3 further testified that about one week later, she was informed that a suspect had been arrested and that she was required to attend Kisumu Central Police Station to identify recovered items. She stated that she was able to identify several items presented to her, including a meko gas cylinder, a Ramtons iron box, a suitcase, a Go-TV decoder, beddings and a bundle of documents belonging to her brother **Clifford.** She also saw the suspect in custody for the first time at the police station. 36. During cross-examination, PW3 testified that she was one of seven siblings and provided details of her family members. She stated that one of her brothers, **Paul Chore,** was in Nairobi at the time of the incident, although his family resided in Kisumu, and that he travelled to Kisumu the following day. She clarified that the suitcase belonged to **Clifford** and was used to store his documents, a fact known to her. She further stated that there was no land dispute within the family, noting that their late father had distributed his property through a will, and that subdivision was ongoing. She also denied knowledge of any threats made by **Paul Chore** to the Appellant while in custody and confirmed that she had not known or seen the Appellant prior to the identification at the police station. 37. PW4, **Clifford Makanda Chore** testified that he was an accountant residing in Nyalenda, though at the material time he was living in Nakuru. He stated that on 10th April, 2016, his wife travelled to Kisumu and was to spend the night at his parents’ home. He recalled that she informed him that her brother had been involved in a road traffic accident and that she had gone to check on him. At about 10.30 p.m., she informed him that she was unable to reach his mother through her Safaricom line and requested for her Airtel line, which he did not have. He later received a call at about 11.00 p.m. from his wife, who was crying and informing him that she had found his mother lying dead at the gate. 38. PW4 testified that upon receiving the news, he informed his siblings, and they all travelled to Kisumu, arriving after the body had already been taken to the mortuary. He stated that the police were at the time conducting investigations. He further testified that on 22nd April, 2017, when they were preparing to collect the body from the mortuary, a suspect had already been arrested, and that the deceased was buried on 23rd April, 2017. 39. It was PW4’s further evidence that after the burial, he was summoned by officers from the Criminal Investigations Department to Kisumu Central Police Station, where he was able to identify several items that had been recovered. These included a suitcase he had left at his mother’s house containing personal documents such as title deeds, marriage certificate, copies of sale agreements and school certificates. He also identified a K-Gas meko cylinder, which he stated was unique as it lacked a knob, as well as two iron boxes and a Go-TV decoder. He confirmed that all the identified items had been in the custody of the deceased prior to the incident, and that he recorded a statement with the police. 40. During cross-examination, PW4 stated that he did not know the Appellant prior to seeing him in court during plea taking. He testified that his mother had seven children and named them. He further stated that the title deed he identified related to land he had purchased in Mamboleo. 41. PW4 explained that upon receiving the news of his mother’s death, he first contacted his sister **Beatrice,** who was in Kisumu, and then his brother **Alphonse** in Nairobi, and that he did not know the whereabouts of his brother **Paul** at the time, though he saw him two days later. 42. PW4 also testified that his father had died in 2002 leaving a will, though no administrator had been appointed, and that there had been no disputes among the siblings during their mother’s lifetime. However, he acknowledged the existence of subsequent disputes among siblings, including pending criminal cases involving allegations of disturbance and malicious damage, which he attributed to disagreements over property. 43. PW4 also stated that he had heard that the Appellant had previously resided in one of the deceased’s rental houses and that his wife used to perform household chores for the deceased, while the Appellant also ran errands for her. 44. In re-examination, PW4 clarified that he began constructing his house in 2006 while his mother was still alive and that there had been no disputes at that time. He stated that the disputes among siblings arose after the incident forming the subject of the case and maintained that those disputes were unrelated to the case before the court. 45. In his testimony before the trial court, PW5, **Alphonse Chore,** testified that he was an ICT specialist residing in Nairobi and working with the Centre for Tech Democracy. He stated that on 10th April, 2016, while at his home in Nairobi, he received a telephone call from his brother, **Clifford,** informing him that their mother, **Lorna Chore,** had been killed. He further testified that he was informed that PW1, **Clifford’s** wife, had relayed the information to him while he was in Nakuru. PW5 stated that upon receipt of the news, he and other family members travelled to Kisumu overnight, arriving at about 5.00 a.m. 46. PW5 testified that upon arrival in Kisumu, they proceeded to the home of the deceased and found that the body had already been removed to the mortuary and that people had dispersed. He stated that he was accompanied by **Clifford,** and that other relatives later joined them. He further testified that upon entering the house, they observed that several items were missing, including a Sony television set and a decoder from the sitting room. He also observed signs of disturbance, including a hanging aerial cable and indications suggesting a struggle within the house, which led him to suspect that a robbery may have occurred. 47. PW5 further testified that they were escorted by **Police Constable Wambua** to Jaramogi Oginga Odinga Teaching and Referral Hospital, where they identified the body of the deceased. He stated that a post-mortem examination was conducted and thereafter the body was transferred to Star Mortuary. He further testified that later, officers from the Directorate of Criminal Investigations contacted him and requested him to identify recovered items, which he subsequently did. 48. PW5 stated that among the items he identified were a black suitcase containing personal effects, a 6kg K-Gas cylinder with a broken burner, a Nokia 1616 mobile phone belonging to his mother, a Go-TV decoder which he had purchased for her, a receipt for the decoder, a Ramtons iron box, a wooden item, a metallic rod and a blood-stained panga recovered inside the suitcase. He also testified that he was informed that a suspect had been arrested in possession of the items, whom he identified in custody as the Appellant, although he did not know him prior to the incident. He added that he had previously spoken to a person identifying himself as **“Eric”** when assisting with installation of the decoder. 49. During cross-examination, PW5 stated that he recorded his statement with the police and confirmed it bore his signature. He testified that a neighbour, one **Alice,** informed him that the Appellant had been seen at the scene, although he did not know the source of the information. He stated that he did not know the motive for the attack but believed it was a robbery due to signs of struggle and missing items. He further confirmed that he was in Nairobi at the time of the incident and denied knowledge of any arrangement by which the stolen items were taken to the Appellant’s house or under his direction. 50. PW5 further stated that he understood the accused had previously been an errand person for the deceased and a tenant, though he clarified that he did not personally know him. 51. In re-examination, he reiterated that the accused had been an errand person for the deceased and also a tenant. He also acknowledged that investigations involved various forensic processes and stated that he had no knowledge of the specific motive for the attack. 52. The prosecution called **Sergeant Ignasias Okinda** (PW6), who testified and told the trial court that he was an officer attached to the Directorate of Criminal Investigations (DCI) Kuresoi, where he was involved in investigations. He stated that on 20th April, 2016, while in the office, he was requested by a colleague to act on analysis arising from call data obtained from Safaricom in relation to the murder of a woman in Nyalenda, whose mobile phone had reportedly been used a few days after her death. 53. PW6 testified that upon review of the call data records, he analysed three sets of data relating to mobile numbers associated with the deceased, a suspect and another user. He stated that the analysis revealed that the deceased’s mobile phone had been used after the murder, and that the IMEI data and call records pointed to a number registered in the name of one **Linet Achieng.** 54. PW6 further stated that investigations led them to Oyugis, where the subscriber was traced, and it was confirmed that she was related to the Appellant, who had reportedly left his home the same day. 55. PW6 testified that further tracking of the mobile signal placed the phone within Nyalenda in Kisumu. He stated that with the assistance of a person familiar with the suspect, they were led to the Appellant’s residence, where they found him asleep. He testified that they woke him, introduced themselves, and conducted a search of the premises, during which several items were recovered and an inventory prepared on 22nd April, 2016. 56. PW6 further testified that among the recovered items was a Nokia mobile phone bearing IMEI number 354836041951608, which belonged to the deceased. He also testified that a SIM card registered to **Linet Achieng,** a damaged phone, certificates of title in the name of **Michael Ogola,** a marriage certificate, a 6kg gas cylinder, a GoTV decoder, spectacles, two iron boxes, assorted clothing and documents, a machete with blood stains, a white metal rod and a black object suspected to have been used in the commission of the offence were recovered. 57. PW6 stated that the machete and blood samples were forwarded to the Government Chemist for analysis, and the report established that the blood stains on the machete matched the DNA profile of the deceased. He further stated that the post-mortem report indicated that the cause of death was severe haemorrhage due to severe soft tissue injuries. He testified that the Appellant was unable to give a satisfactory explanation for the recovered items and that investigations established his involvement in the offence. 58. PW6 further testified that letters requesting call data records were dated 19th April, 2016 and related to mobile numbers 0720\*\*\*\*58 and 0725\*\*\*\*95, and that the IMEI analysis request was also made. He produced the call data request forms and call data records as exhibits, together with an inventory marked as having been signed by the Appellant on 22nd April, 2016. He identified the recovered exhibits, including the machete, rods, GoTV decoder, gas cylinder, suitcase, iron boxes, bedding, documents and mobile phones, which he produced in evidence. 59. PW6 further testified that although the Nokia phone belonging to the deceased was not physically produced in court during the retrial, it had been previously produced and recorded in the inventory and court records. He stated that it was unclear whether the phone remained in the court registry or had been misplaced in custody as it had been produced as an exhibit in another case. He also testified that the Appellant signed the inventory upon recovery of the items, which was witnessed by other officers. 60. During cross-examination, PW6 stated that the Appellant had been working for the deceased as a shamba boy and caretaker within her homestead at Nyalenda. He testified that he was not aware of any family disputes involving the deceased and her children and could not recall the exact layout of the homestead. He further stated that, according to his understanding, the deceased was alone at the time of the incident, as other family members had travelled for a funeral. 61. PW6 further testified that the body of the deceased was found near the gate of the deceased’s house on the material night of 10th April, 2016 at about 10.30 p.m., although he stated that the exact time of death could only be determined by the pathologist. He opined that the incident likely occurred between 9th and 10th April, 2016. 62. In re-examination, PW6 stated that the deceased’s mobile phone was not brought to court during the retrial as it was either retained in the court registry or misplaced after the earlier proceedings. He further testified that through Safaricom data analysis, the phone was traced to Oyugis and later to Nyalenda, where the Appellant was arrested. He stated that items belonging to the deceased were recovered from the Appellant during the investigations. 63. In his testimony before the trial court, PW7, **Corporal David Barno,** testified that he was based in Kwale County. He stated that on 1st April, 2016, while on duty at Kisumu Police Station where he then worked, he received a report through the radio control room from officers at Nyalenda Police Post regarding an incident of murder. He proceeded to the scene of crime together with his colleague, **Police Constable Ekisa.** 64. PW7 testified that upon arrival at the homestead of the deceased at Obuod, Nyalenda, they met PW2, **Arthur Otieno,** who had reported the incident. He stated that they found the body of the deceased at the gate of the compound. Upon examination, they observed that the deceased had deep cuts on the head and back. He further testified that the scenes of crime personnel took photographs of the scene. 65. PW7 stated that they conducted a search of the compound but did not recover any immediate items of evidential value at the scene. He testified that all doors to the house were open and household items were scattered, but no person was found within the premises. He further stated that they concluded the body was likely to have been at the scene for approximately two days and that decomposition had already begun. 66. PW7 testified that the body was removed and taken to Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary for preservation. He further stated that blood samples were collected and preserved for forensic examination. He produced an exhibit memo form and stated that he could not specifically recall when he recorded his statement. 67. During cross-examination, PW7 stated that he did not know the whereabouts of the Appellant at the time of the incident but understood that he had been missing. He further stated that he received information from PW2 that the Appellant used to reside within the deceased’s compound and would assist her in the homestead. He testified that he did not prepare an inventory but added that the deceased’s family confirmed that there were some missing items. He further stated that the scene was preserved and reiterated that the Appellant was said to have been living within the compound as a house help. 68. PW7 further stated that the death had occurred approximately one to two days before the body was discovered, although he indicated that such estimation could be confirmed by the investigating officer. 69. In re-examination, PW7 clarified that the Appellant was said to have lived within the compound in a separate room as a house help, and confirmed that he was not the investigating officer. He also stated that the blood sample was extracted by the doctor from the deceased. 70. PW8, **Martin Wekesa,** testified that he was an officer attached to the Directorate of Criminal Investigations (DCI), serving in the Criminal Intelligence Unit, with duties involving the collection and dissemination of intelligence to relevant authorities. He stated that in the year 2016 he was seconded to Safaricom as a liaison officer, where his work entailed analysing telecommunications data and M-Pesa transaction records. 71. PW8 testified that on 19th April, 2016, his office received a request from the DCI Kisumu seeking call data records for mobile numbers 0725\*\*\*\*94, 0720\*\*\*\*58 and 0705\*\*\*\*90. He stated that the request was contained in a letter dated 19th April, 2016, which he produced in evidence. 72. The officer further testified that another request was received seeking data relating to an IMEI number 354836041951600 and call data records for the period between 1st April, 2016 and 18th April, 2016, including subscriber details and IMEI history. 73. PW8 testified that upon receipt of the requests, he extracted the relevant data as required and prepared call data records and IMEI history reports. He stated that according to the records, one of the IMEI numbers was first used with mobile number 0725\*\*\*\*94 on 21st April, 2016 at 2:06 p.m. He further testified that the registration details for mobile number 0720\*\*\*\*58 indicated that it was registered in the name of **Lorna Otaro Jure,** while another number was registered in the name of **Linet Achieng** using identification details captured in the system. 74. PW8 further testified that he prepared the necessary certificates under *Section 65* as read with *Section 106* of the *Evidence Act* to authenticate the electronic records produced. He also produced a letter of authority permitting him to release the requested information, together with the relevant call data records and IMEI analysis reports, which he produced as exhibits before the court. 75. During cross-examination, PW8 stated that he did not produce any physical mobile phone in court, explaining that his role was limited to data analysis and retrieval and that he was not supplied with the physical devices. 76. In re-examination, PW8 clarified that his work was strictly confined to analysing telecommunications data provided to him and that he did not handle or examine the physical phones in question. 77. In his testimony before the trial court, PW9, **Richard Mutai,** testified that he was a Government Analyst based in Kisumu with 27 years of experience. He stated that he held a degree in forensic science from Egerton University and was gazetted on 31st May, 2016. 78. PW9 further testified that he received a police exhibit memo from CID Kisumu in relation to the case, referencing the Appellant **Erick Omondi** and the deceased **Lorna Grace,** for purposes of DNA analysis. 79. PW9 testified that he received blood samples from the deceased and a blood-stained panga for forensic examination. He stated that the exhibits were submitted to his laboratory for determination of DNA genetic relationship and analysis of the blood stains. 80. PW9 further testified that upon examination, the blood stains on the panga were found to be of human origin and that DNA profiling established that the blood on the panga matched the DNA profile of the deceased, **Lorna Grace.** 81. He stated that he prepared and signed a report detailing his findings, which he produced in evidence. 82. The last prosecution witness (PW10) was **Dr. Eugene Ochieng,** who testified that he was a medical doctor at Jaramogi Oginga Odinga Teaching and Referral Hospital. He stated that the post-mortem examination in respect of the deceased, **Lorna Chore,** was conducted on 14th April, 2016 at about 2.00 p.m. by his colleague, who was away in Nairobi for studies. 83. PW10 testified that the body of the deceased was found at her compound in Nyalenda “B” on 10th April, 2016 at midday and was identified by PW1, **Prisca Anyango,** the daughter-in-law. He stated that the deceased was an elderly African woman of approximately 1.65 metres in height and that the body was well preserved at the time of examination. 84. PW10 further testified that upon external examination, the deceased had multiple injuries, including cut wounds on the head and upper limbs, a cut below the lower jaw, cuts behind the ears, cuts on the cheeks and injuries on the back. He also noted a fracture of the left scapula. He stated that the chest, heart and abdomen were otherwise normal, and that the primary injuries were concentrated on the head region. 85. PW10 testified that the cause of death was severe haemorrhage resulting from deep cut wounds sustained by the deceased. He stated that the report indicated the nature of injuries as consistent with assault, leading to excessive blood loss and eventual death. 86. PW10 further testified that he had worked with the doctor who prepared the post-mortem report for about one year and was familiar with his signature. He produced the post-mortem report in evidence as an exhibit before the court. 87. During cross-examination, PW10 stated that although the report did not expressly indicate certain details such as delay in examination, the findings were consistent with the observations made at the scene and during post-mortem examination. 88. **RULING ON CASE TO ANSWER.** 89. In a considered ruling delivered on 9th June, 2021, the trial court evaluated the prosecution evidence placed before it and found that the same had established a *prima facie* case against the Appellant sufficient to warrant him being placed on his defence. 90. The court held that the evidential threshold required at that stage had been met and consequently, the Appellant was put on his defence and, upon being called upon to elect his mode of defence, he chose to give sworn testimony. 91. **THE DEFENCE CASE.** 92. In his sworn defence before the trial court, the Appellant, **Erick Omondi Mboya,** testified that he hailed from Oyugis and was residing in Nyalenda, Kisumu. He stated that on 22nd April, 2016, he was sent by his employer, a company known as Mohan Engineering, and remained away until 28th April, 2016, when he returned to Kisumu and went to the house where he lived. He stated that upon arrival, he obtained a keys from a neighbour, as the landlord had allegedly left it with them. 1. The Appellant testified that he was informed by a neighbour that a tenant referred to as **Chore** (or **Njore**), a son to the landlady, was to occupy his house. He stated that on 22nd April, 2016, he paid rent through **Chore’s** mother, whom he understood to be the proper recipient of rent for the premises. He further stated that he had previously collected rent on behalf of the landlady for several rental units. 2. The Appellant testified that after paying rent and communicating with the landlady, he informed her that he was travelling to Nairobi on work-related duties. He stated that he handed over one key to the landlady and retained a spare, and requested her to arrange for someone to oversee his house in his absence. He further stated that upon his return, he was informed that **Paul Chore** had been overseeing his house and had left the key. 3. The Appellant stated that upon entering his house, he found a suitcase and a gas cylinder under a table. He further testified that he began cleaning the house while expecting **Chore** to return. He stated that when he inquired from his neighbour, **“Mama Marion”,** about the items in the house, she indicated that she did not know their ownership as Njore had the habit of leaving and returning. 4. The Appellant further testified that he prepared food and rested on the couch, but at around midnight, police officers arrived and inquired whether he was **Erick.** He stated that he confirmed his identity, after which he was arrested shortly thereafter. He testified that one officer known to him by appearance instructed the others to arrest him, and that he was not properly informed of the reason for his arrest. 5. The Appellant testified that he saw **Paul Chore** carrying a bag and a gas cylinder, and that he was thereafter taken away amidst commotion from neighbours. He stated that he was placed in a motor vehicle, which took him to a police station. He further stated that he was placed in a cell and interrogated regarding the origin of the recovered items, to which he responded that they belonged to the landlady’s son who had been staying in his house. 6. The Appellant testified that he was assaulted by **Paul Chore** and was compelled to sign a statement whose contents he did not understand. He stated that he refused to sign but was later forced, and that he was thereafter detained. He further alleged that a female police officer initially objected to his detention but was overruled by other officers. 7. The Appellant further testified that he had previously informed the trial court that he was unaware of the exact dates of the alleged offence and maintained that he could not recall whether the incident occurred on 9th or 10th April. 2016. He denied knowledge of some of the recovered items, stating that he only saw a gas cylinder and a bag, and disputed knowledge of other exhibits such as a panga. 8. The Appellant further stated that he attempted to contact his advocate but was unable to reach her. He maintained that he had been wrongly implicated and that the items recovered in his house had been planted or left by other persons without his knowledge. 9. **THE TRIAL COURT’S FINDINGS.** 10. Upon the close of the trial, the learned trial Magistrate, upon considering the evidence on record, the applicable law and the record in its entirety, rendered himself as follows, in his judgement delivered on 3rd November, 2021: ***“From the evidence before the court, it is clear that the deceased died as a result of injuries inflicted on her using a sharp object.*** ***What is crucial is whether it is the accused who committed the offence.*** ***There were a number of items which were produced as exhibits in court found in the accused’s house. The said items were positively identified by the witnesses in court. I have seen the testimony by PW6. He tells the court that the mobile number belonged to the deceased, he was not however able to produce it in court for the reason that it was produced during the initial hearing. The investigating officer was unable to get it back.*** ***This court takes judicial notice that this is a fresh trial as such evidence needs to be tendered afresh so the court does not rely on the testimony adduced previously and exhibits. Evidence ought to be tendered afresh.*** ***I have noted that the blood sample extracted from the deceased and the blood stains on the machete found in the accused’s house matched. They belonged to the same person – the deceased.*** ***I have had to ask myself a number of questions:*** ***- Why the accused was not at his place of work.*** ***- How he was found in a house which he confirmed was his, with the deceased’s missing items.*** ***- In particular, how come the machete that was found in that house had blood stains matching the blood of the deceased.*** ***- How comes, the house was his, nobody else was there and no one else was called to corroborate his evidence, not even the neighbours he mentioned.*** ***Whereas I am content that the accused person was not found in the act or seen by anyone executing the act, circumstantial evidence points at the accused as the one who committed the offence.*** ***I find that the prosecution has proved its case beyond reasonable doubt. I find the accused person guilty of the offence of robbery with violence.”*** 1. With the above, the trial court went on to find that the prosecution had proved the offence of robbery with violence against the Appellant beyond reasonable doubt and proceeded to convict him in line with *Section 215* of the *Criminal Procedure Code.* The Appellant was subsequently sentenced to suffer death. 2. **THE APPELLANT’S SUBMISSIONS ON APPEAL.** 3. The Appellant submitted that the trial court erred in law and fact by relying on evidence that was contradictory, speculative and supported by improperly linked exhibits, thereby arriving at an unsafe conviction. He argued that the prosecution evidence, particularly that of PW1, contained material inconsistencies regarding the discovery of the deceased. He pointed out that PW1 testified in examination-in-chief that she screamed and called a neighbour upon discovering the deceased, but in cross-examination stated that she first went to knock at a neighbour’s house **(Alice)** before others responded, which, in his view, raised doubts as to the credibility of her account. 4. The Appellant further submitted that PW2 and PW1 gave inconsistent accounts regarding their proximity to the scene and their ability to perceive events, which he argued made it improbable that a violent struggle and killing could have occurred without attracting attention from neighbouring residents. He also pointed to alleged contradictions in PW3’s testimony regarding the presence of **Paul Chore,** submitting that PW3 alternately stated that **Paul** arrived the next day and that he was not in Kisumu, which he contended demonstrated deliberate concealment of material facts within the family. 5. The Appellant further attacked the evidence of PW4, submitting that it was internally inconsistent regarding family relations and alleged disputes. He cited PW4’s assertion that the siblings had no issues, contrasted with later allegations of family conflicts and criminal complaints involving other family members, which he argued demonstrated bias and animosity within the family, thereby affecting the reliability of their testimonies. 6. The Appellant further submitted that there were material contradictions concerning the mobile phone allegedly belonging to the deceased, which he described as a central exhibit in the prosecution case. He argued that PW6 gave inconsistent accounts regarding the recovery and identity of the phone, and PW8’s call data evidence did not conclusively link the Appellant to the offence. He contended that discrepancies in serial numbers and the alleged disappearance or non-production of the phone weakened the prosecution case and raised reasonable doubt. 7. Relying on the case of ***Mary Wanjiku Gichira v Republic [1988] KLR 1185*** and ***Amatoro Omotto v Republic [2008] 20 EACA 132,*** the Appellant submitted that where prosecution evidence is materially contradictory, such contradictions go to the root of the case and cannot form the basis of a safe conviction. He argued that the trial court failed to resolve these contradictions in his favour as required by law. 8. On the charge of robbery with violence under *Section 295* as read with *Section 296(2)* of the *Penal Code,* the Appellant submitted that the essential ingredients of the offence were not proved beyond reasonable doubt. He argued that no witness saw the commission of the robbery or any violent act, and that there was no evidence placing him at the scene during the alleged attack. He further contended that the ingredients of being armed, being in the company of others or using violence at or immediately after the robbery were not established. 9. He relied on ***Jeremiah Oloo Odira v Republic [2018] eKLR,*** where the court emphasized that robbery with violence requires proof of theft coupled with violence or threat thereof, and submitted that both elements were not proved in his case. He also relied on ***Oluoch v Republic [1985] KLR,*** where the Court of Appeal set out the ingredients of robbery with violence, submitting that none of those statutory requirements were satisfied by the prosecution evidence. 10. The Appellant further submitted that the prosecution failed to prove its case beyond reasonable doubt as required by law. He relied on ***Miller v Minister of Pensions [1947] 2 All ER 372,*** where it was held that proof beyond reasonable doubt does not mean beyond all possible doubt but requires a high degree of probability. He also cited ***Bakare v State [1987] NWLR (Pt 52) 579,*** (which decision I was unable to find) emphasizing that the presumption of innocence can only be displaced by cogent and credible evidence, and ***Pius Arap Maina v Republic [2013] eKLR,*** which held that any evidential gap must be resolved in favour of the accused. 11. The Appellant further relied on ***Burunyi & Another v Uganda Criminal Appeal No. 1968 EA 123,*** where the court held that it is not the duty of the court to make a case for the prosecution and that the court must confine itself to the evidence presented. He submitted that the trial court improperly filled gaps in the prosecution case and relied on unproven assumptions. 12. On the failure to call crucial witnesses, the Appellant relied on the authority of ***Bukenya & Others v Uganda [1972] EA 549,*** where it was held that the prosecution is obliged to call all material witnesses necessary to establish the truth and that failure to do so may lead to an inference that their evidence would have been adverse to the prosecution case. He argued that failure to call key witnesses such as **Paul Chore,** (or **Njore**) neighbours and other persons allegedly connected to the scene was fatal to the prosecution case. 13. The Appellant further submitted that failure to produce crucial exhibits, particularly the alleged mobile phone, weakened the prosecution case and rendered the call data evidence unreliable. He argued that without the physical exhibit, the electronic evidence was unverified and insufficient to sustain a conviction. 14. In conclusion, the Appellant submitted that the prosecution case was riddled with inconsistencies, unproven assumptions and evidentiary gaps and that the trial court erred in failing to resolve these in his favour. He urged the Court to find that the prosecution failed to prove its case beyond reasonable doubt, to allow the appeal, quash the conviction and set aside the sentence imposed. 15. **THE RESPONDENT’S SUBMISSIONS ON APPEAL.** 16. The Respondent submitted that the Appellant was properly convicted of the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code* and sentenced to death. 17. On the issue of alleged contradictions in the prosecution evidence, the Respondent submitted that the purported inconsistencies in the testimonies of PW1, PW2, PW3 and PW4 were not material or fatal to the prosecution case. It was argued that the prosecution had sufficiently proved all the ingredients of the offence of robbery with violence and that any discrepancies did not go to the root of the case. 18. The Respondent relied on ***Richard Munene v Republic [2018] eKLR,*** where the Court held that contradictions, discrepancies and inconsistencies in witness testimony only become fatal if they are substantial and go to the root of the prosecution case so as to create doubt in the mind of the court. It was submitted that in the present case, the Appellant had failed to demonstrate how the alleged contradictions were material to the determination of guilt. 19. The Respondent further submitted that the ingredients of robbery with violence were clearly established, namely that the offender was armed with a dangerous weapon, or was in the company of one or more persons, or that violence was used before, during, or after the robbery. It was argued that the evidence adduced satisfied these statutory requirements beyond reasonable doubt. 20. On the issue of sentence, the Respondent submitted that section *296(2)* of the *Penal Code* provides for a mandatory death sentence upon conviction for robbery with violence. It was further argued that the sentence imposed by the trial court was lawful and properly grounded in statute, given the brutal nature of the offence which resulted in the deceased sustaining multiple deep cut injuries and ultimately succumbing to severe haemorrhage. 21. The Respondent relied on the Supreme Court’s directions in ***Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) (Directions)*** (commonly referred to as ***Muruatetu II***), where the court pronounced itself that courts are still required to impose mandatory sentences where prescribed by law, and that such sentences remain valid unless lawfully set aside. It was therefore submitted that there was no basis for interfering with the sentence imposed by the trial court. 22. On the issue of failure to call crucial witnesses and produce exhibits, the Respondent submitted that the matter was a retrial and that the court had been informed that one exhibit (a mobile phone) could not be traced at the time of the retrial, having been previously handled by the investigating officer. It was contended that this omission was not fatal to the prosecution case. 23. The Respondent further submitted that notwithstanding the missing exhibit, there was overwhelming evidence linking the Appellant to the offence, including other recovered items found in his possession as well as forensic evidence. It was specifically argued that a blood-stained weapon recovered from the Appellant’s premises was confirmed by the Government Analyst (PW10) to have blood matching that of the deceased. 24. In conclusion, the Respondent submitted that the prosecution had proved all the ingredients of the offence of robbery with violence beyond reasonable doubt. It was argued that the trial court properly evaluated the evidence and rightly convicted the Appellant, and that the sentence imposed was lawful and justified in the circumstances. The Respondent therefore prayed that both the conviction and sentence be upheld. 25. **ISSUES FOR DETERMINATION.** 26. Having carefully considered the record of the trial court, the grounds of appeal, the submissions by the parties and the applicable law, the issues that arise for determination are as follows: 1. Whether the prosecution evidence was marred by material contradictions and inconsistencies and, if so, whether such contradictions went to the root of the case so as to render the conviction unsafe. 2. Whether the prosecution proved all the essential ingredients of the offence of robbery with violence contrary to *Section 295* as read with *Section 296(2)* of the *Penal Code.* 3. Whether the doctrine of recent possession was applicable in the circumstances of this case. 4. Whether the prosecution proved its case against the Appellant beyond reasonable doubt as required by law, taking into account the totality of the evidence. 5. Whether the failure to call certain witnesses, particularly persons alleged to have been within or near the scene of crime, and the failure to produce certain exhibits, including the mobile phone allegedly belonging to the deceased, was fatal to the prosecution case. 6. Whether the Appellant’s defence, including his *alibi* and explanation of possession of some of the recovered items, was properly considered by the trial court and whether it raised a reasonable doubt in the prosecution case. 7. Whether the sentence of death imposed by the trial court was lawful, constitutional and appropriate in the circumstances of the case. 27. The Court will consider each of these issues sequentially in determining whether the conviction and sentence should be upheld or interfered with. 28. **ANALYSIS AND FINDINGS.** 29. I will proceed to address and determine the above issues. 30. This being a first appeal, this court is under a duty to re-evaluate and re-analyse the evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. This principle was succinctly stated in ***Okeno v Republic [1972] EA 32,*** where the Court of Appeal for East Africa held that: ***“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination… and to the appellate court’s own decision on the evidence.”*** 1. It is upon this standard that the present appeal falls to be determined. 2. From the issues framed and having regard to the manner in which the appeal has been argued, it is apparent that several of the issues overlap. I will therefore determine them together where appropriate, particularly those touching on contradictions, proof of the offence, circumstantial evidence, recent possession, failure to call witnesses and the alleged failure to produce exhibits, as these all go to the core question of whether the prosecution proved its case beyond reasonable doubt. 3. The Appellant’s principal complaint is that the prosecution case was riddled with contradictions and inconsistencies, particularly in the testimonies of PW1, PW2, PW3 and PW4 and that the trial court erred in relying on such evidence. I have carefully considered each of the alleged contradictions as highlighted in the submissions. What emerges is that the Appellant’s complaint largely relates to peripheral discrepancies in narration, sequence of events and perception of witnesses at the scene, rather than inconsistencies touching on the essential ingredients of the offence. 4. It is now well settled that human recollection of events, especially in traumatic and sudden occurrences such as violent crime, cannot be expected to be mathematically precise or identical. Courts must not elevate minor discrepancies into fatal contradictions. In ***Richard Munene v Republic [2018] eKLR,*** the Court of Appeal stated: ***“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. However, it is not every contradiction or inconsistency that will be fatal to the prosecution case. Only where such inconsistencies are material and go to the root of the case will they vitiate a conviction.”*** 1. The same position was reiterated in ***Joseph Maina Mwangi v Republic [2000] eKLR,*** where the Court held that contradictions must be assessed in context and only those that affect the substance of the charge are relevant in determining whether a conviction is safe. 2. In the present case, the alleged contradictions between PW1’s examination-in-chief and cross-examination regarding whether she screamed immediately or first went to a neighbour’s house, or the sequence in which neighbours responded, do not in any way alter the core fact that she found the deceased lying outside the house already injured or dead. 3. Similarly, the variations in descriptions of movement at the scene do not affect the fact of death, the presence of injuries or the subsequent discovery of stolen property. 4. Likewise, the evidence of PW2 regarding his arrival at the scene and PW1’s presence is consistent on the material fact that the deceased had already been attacked, and that the body was found within the compound. Whether PW2 accessed through a rear gate or main gate, or whether he arrived moments earlier or later than PW1, does not affect the legal question of whether a robbery and killing occurred. 5. As regards PW3 and PW4, the alleged contradictions concerning the presence or movement of one **Paul Chore** relate more to family dynamics and post-incident narration rather than the occurrence of the offence itself. Even assuming some inconsistency on whether a particular family member was present at a given time, such does not negate the fact that stolen items were identified and recovered and that a violent death had occurred. 6. In sum, I find that the contradictions complained of are not of such a nature as to discredit the entire prosecution case. They are minor, explainable and consistent with normal human recollection under distress. They do not affect the ingredients of the offence or the evidential chain relied upon by the prosecution. I therefore find that the alleged contradictions were not material and did not vitiate the prosecution case. 7. The other issue is whether the offence of robbery with violence was proved. The offence of robbery with violence is created under *Section 295* as read with *Section 296(2)* of the *Penal Code.* The jurisprudence on this offence is well settled. In ***Oluoch v Republic [1985] KLR 549,*** the Court of Appeal held that the offence is established if any one of the following is proved: that the offender was armed with a dangerous weapon; or was in the company of one or more persons; or used or threatened to use violence at or immediately before or after the robbery. 8. In the case of ***Dima Denge Dima & Others v Republic [2013] eKLR,*** the Court reiterated that proof of any one of these ingredients is sufficient to sustain a conviction for robbery with violence. 9. In the present case, the evidence of PW10, the medical officer who produced the post-mortem report, clearly established that the deceased suffered multiple deep cut wounds inflicted by a sharp object, including injuries to the head, face, jaw, ears and upper limbs. The cause of death was severe haemorrhage due to these injuries. This evidence is consistent with a violent attack involving a dangerous weapon. 10. Further, PW6 and PW9 provided forensic corroboration by linking a blood-stained machete recovered during investigations to the DNA profile of the deceased. This scientific evidence removes any doubt as to the violent nature of the attack and the use of a dangerous weapon. 11. In addition, PW3, PW4 and PW5 consistently testified that multiple household items were stolen from the deceased’s house, including a television set, decoder, gas cylinder, iron boxes, suitcase and documents. The fact of theft is therefore clearly established. 12. Taken together, the evidence demonstrates both the commission of theft and the use of extreme violence. The absence of eyewitness testimony to the actual act of killing is not fatal, provided the circumstantial and forensic evidence proves the offence beyond reasonable doubt. I therefore find that all the essential ingredients of robbery with violence were proved beyond reasonable doubt. 13. The next issue that I will address is whether the doctrine of recent possession applies. 14. Although the trial court did not expressly analyse the doctrine of recent possession, this Court is entitled to consider whether it applies on the evidence on record, as it is part of the totality of circumstantial evidence. 15. The doctrine of recent possession is a well-established evidential principle. In ***Malingi v Republic [1989] KLR 225,*** the Court of Appeal held: ***“By the application of the doctrine of recent possession, the burden shifts to the accused to explain his possession of the stolen property, and if he fails to do so, a presumption arises that he is either the thief or a guilty receiver.”*** 1. Similarly, in ***Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic [2006] eKLR,*** the Court emphasized that the prosecution must prove: (i) that the property was found with the accused; (ii) that the property is positively identified as belonging to the complainant; (iii) that the possession is recent; and (iv) that the accused fails to offer a reasonable explanation. 2. In this case, PW6 led evidence that several items belonging to the deceased were recovered from the Appellant’s house shortly after the incident. These included a gas cylinder, suitcase, decoder, iron boxes, clothing and documents. PW3, PW4 and PW5 positively identified these items as belonging to the deceased or her household. 3. The recovery was made within days of the robbery, satisfying, in my view, the requirement of recency. The items were found in the Appellant’s exclusive possession within his house, as confirmed by PW6 and the inventory produced in evidence. 4. The Appellant’s explanation that the items were left by the deceased’s son or by other persons is not supported by any credible evidence. It is a bare denial that does not displace the strong presumption arising under the doctrine. 5. I therefore find that the doctrine of recent possession squarely applies and strongly supports the inference that the Appellant was involved in the robbery. 6. The next issue is whether the prosecution proved the case beyond reasonable doubt. 7. The prosecution case in this matter rests on a combination of direct evidence of death, forensic evidence, recovery of stolen property and circumstantial inference. The legal standard of proof is that of beyond reasonable doubt, as articulated in ***Miller v Minister of Pensions [1947] 2 All ER 372,*** where **Lord Denning** stated that proof beyond reasonable doubt does not mean beyond all doubt, but requires a high degree of probability. 8. In ***Sawe v Republic [2003] eKLR,*** the Court of Appeal held that in cases based on circumstantial evidence, the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt. 9. Applying this standard, the evidence in this case forms a complete and unbroken chain. First, the deceased was violently killed in her home. Second, her property was stolen. Third, the stolen items were shortly thereafter recovered from the Appellant’s possession. Fourth, forensic analysis linked a blood-stained weapon, which was found in the Appellant’s house, to the deceased. Fifth, electronic evidence placed the stolen mobile phone within the same investigative chain linked to the Appellant. 10. The cumulative effect of this evidence is that the only reasonable inference is that the Appellant was involved in the robbery and killing. I therefore find that the prosecution proved its case beyond reasonable doubt. 11. The next issue that the Appellant raised, which I will now consider, is whether failure to call witnesses or produce exhibits was fatal to the prosecution case. 12. The Appellant contends that failure to call certain witnesses, including **Paul Chore,** and failure to produce certain exhibits, was fatal to the prosecution case. The law is clear that the prosecution is not required to call a superfluity of witnesses. 13. In the case of ***Bukenya v Uganda [1972] EA 549,*** the Court held that while the prosecution must call witnesses necessary to establish the truth, the failure to call additional witnesses is not fatal unless it is shown that their evidence would have been adverse or essential. 14. In this case, the witnesses called were more than sufficient to establish the prosecution case. PW1–PW10 collectively provided a coherent narrative supported by forensic and documentary evidence. There is nothing to suggest that any essential witness was deliberately withheld. I therefore find no basis for drawing an adverse inference against the prosecution. 15. The Appellant has also challenged the failure to physically produce the deceased’s mobile phone during the retrial. PW6 and PW8 however gave clear and consistent evidence that the phone had been previously produced in prior proceedings, recorded in the inventory, and was traced through Safaricom IMEI and call data analysis. 16. The Court in ***Republic v Thomas Patrick Gilbert Cholmondeley [2008] eKLR*** held that documentary and electronic evidence can be sufficient to establish facts even where physical exhibits are unavailable, provided the chain of custody and authenticity are proved. 17. In this case, PW8 produced certified call data records and IMEI analysis under the *Evidence Act,* which independently confirmed usage of the stolen phone shortly after the offence. I therefore find that the non-production of the physical phone was satisfactorily explained and did not weaken the prosecution case. 18. In conclusion, having considered the totality of the evidence, I am satisfied that the prosecution established a strong circumstantial, forensic and evidential chain linking the Appellant to the robbery and killing of the deceased. The defence offered did not displace this evidence or raise any reasonable doubt. I therefore find that the conviction was safe, proper and supported by the evidence on record. 19. On the issue of sentence, it is important to restate the legal position obtaining in respect of the offence of robbery with violence under *Section 296(2)* of the *Penal Code.* The said provision expressly prescribes the death sentence upon conviction. 20. Where Parliament has provided a mandatory sentence in clear and unambiguous terms, the sentencing court is bound to impose it unless and until such provision is lawfully declared unconstitutional or amended by competent authority. 21. In this regard, the Supreme Court in ***Muruatetu II*** made it clear that its earlier decision in ***Francis Karioko Muruatetu & another v Republic [2017] eKLR*** (***Muruatetu I***) was specific to the offence of murder under *Section 203* as read with *Section 204* of the *Penal Code* and could not be applied universally to all offences carrying mandatory or minimum sentences. 22. The Supreme Court expressly directed that courts should not interpret **Muruatetu I** as authority for declaring all mandatory sentences unconstitutional, and further clarified that statutory provisions prescribing mandatory sentences remain valid and binding unless and until properly challenged and set aside in appropriate proceedings. 23. In the present case, therefore, the trial court was bound by *Section 296(2)* of the *Penal Code* to impose the sentence prescribed by law upon conviction for robbery with violence. 24. In any event, even beyond the mandatory nature of the sentence, the circumstances of the offence were exceptionally grave, involving a brutal attack resulting in multiple deep cut injuries and the death of the deceased, thereby justifying the most severe penalty in law. 25. Accordingly, I find no basis upon which this Court can interfere with the sentence imposed by the trial court. 26. Accordingly, the appeal against both conviction and sentence fails and is dismissed. The conviction and sentence imposed by the trial court are hereby upheld. 27. This file is hereby closed. DELIVERED (virtually), SIGNED & DATED this 4th day of June, 2026. **JOE M. OMIDO** **JUDGE** APPELLANT: Present, virtually. FOR RESPONDENT: **Ms. Muema.** COURT ASSISTANT: **Mr. Juma.**