https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10544

Odhiambo v Republic (Criminal Appeal E019 of 2026) [2026] KEHC 10544 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10544 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E019 of 2026 DR Kavedza, J July 16, 2026 Between Evans Ochieng Odhiambo Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. C.M. Njagi (P.M) on 29th August 2024 at Kibera Chief Magistrate’s Court Criminal Case no. 349 of 2020 Republic vs Daniel Onyango Oduor and O of 2017 Republic vs Evans Ochieng Odhiambo and 3 others) Judgment 1.The appellant was jointly charged with others not before this court with two counts of the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was convicted and sentenced to serve five (5) years imprisonment for each count with the sentences set to run concurrently. 2.Being aggrieved, he filed the present appeal challenging his conviction and sentence. He challenged the totality of the prosecution's evidence against which he convicted, thereby contending that the prosecution failed to prove their case beyond reasonable doubt. He further argued that trial court shifted the burden of proof onto the appellant by disregarding his defence. He urged the court to quash the conviction and set aside the sentence. 3.This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32). 4.The prosecution called twelve (12) witnesses. PW3, Rahab Wanjiku Nyoro, testified that on 30th March 2020 she was attending to customers at her shop with her employee, Ruth, when PW2, Stephen Kariuki, withdrew Kshs. 60,000 from his Equity Bank account. Shortly thereafter, another customer, Hannah, deposited Kshs. 38,000. The first accused (Kevin Mulingwa) positioned himself between PW2 and the counter, ostensibly to purchase airtime worth Kshs. 10, while signalling to his accomplices. Moments later, the appellant and the third accused(Benard Wise Furaha) entered the shop armed with firearms, ordered those present to kneel, and robbed the complainants of Kshs. 206,000 together with two mobile phones, a Tecno and a Huawei. PW3, PW2 and PW1 later identified the assailants at identification parades. 5.PW3 screamed and attempted to flee, attracting the attention of PW1, Joseph Mburu Ngaita, who rushed to the shop and found PW2 struggling with the first accused and the appellant. A firearm was pointed at him, forcing him to retreat. PW1 corroborated PW3's account of the robbery and subsequently identified the suspects during an identification parade. 6.PW5, Andrew Kinyanjui, a security guard, alerted the police immediately after the robbery. PW4, Inspector Patrick Kibet, responded to the report and, while en route, encountered members of the public pursuing the first accused, who was discarding money as he fled. The first accused was arrested and Kshs. 3,450 was recovered from his person and produced as an exhibit. 7.PW6, Chief Inspector Ann Samali, conducted an identification parade during which the first accused and the appellant were identified by witnesses. She produced the parade forms in evidence. PW7, Joseph Seka Omutore, witnessed the assailants fleeing towards a waiting motorcycle while being pursued by members of the public. He later attended Kabete Police Station where he identified the appellant and the third accused. PW8, Inspector Framwel Mureithi Njue, conducted a separate identification parade in which the third accused was positively identified. 8.PW9, Corporal Jenifer Sirwa, photographed the motorcycle allegedly used in the robbery, and the photographs were produced in evidence. PW10, Ernest Kinya, testified regarding the arrest of the appellant. PW11, PC John Wambugu Irungu, the investigating officer, summarised the investigations and produced correspondence addressed to the National Transport and Safety Authority concerning the recovered motorcycle. PW12, PC Willy Bungei, testified that he arrested the fourth accused while he was waiting near the motorcycle allegedly used in the commission of the offence. 9.Upon finding that the prosecution had established a prima facie case, the trial court placed all four accused persons on their defence. 10.DW1, Kevin Mulingwa, the first accused, denied participating in the robbery, maintaining that he had merely gone to purchase airtime worth Kshs. 10 when armed men entered the shop. He stated that he was arrested by police at the scene and that the Kshs. 3,450 recovered from him was his own money. The appellant, DW2, similarly denied the offence, asserting that he was arrested while going about his normal duties, taken to Kabete Police Station, tortured, and falsely charged. 11.DW3, Bernard Wise Furaha, the third accused, testified that he had initially been arrested on suspicion of selling cannabis, released on cash bail, involved in a road traffic accident, and later rearrested and charged with the present offence. DW4, Evans Juma, stated that he had been watching football with the third accused at a hotel during the material period. 12.In support of the third accused's defence, DW5, John Aggrey, testified that the third accused brought him a motorcycle for washing after it appeared to have been involved in an accident. DW6, Gerald Miramba, stated that he repaired the same motorcycle at about 1.30 p.m. before the third accused left with it. DW7, Sharon Wafula, and DW12, Habiba Mohamed, testified that they served the third accused lunch before he departed with a friend later that afternoon. 13.DW8, Emmanuel Furaha, DW9, Lydia Furaha, DW10, Abdul Majid Muiruri, and DW11, Peter Furaha, testified principally on the circumstances surrounding the third accused's arrest, detention, and alleged assault while in police custody, and maintained that he had been arrested away from the scene of the robbery. 14.DW13, Samuel Kamau, the fourth accused, denied any involvement in the offence. He testified that he was arrested while returning from work, taken to the police station without explanation, detained for two weeks, and charged despite never having participated in an identification parade. He maintained that he had no connection with the alleged robbery. 15.The appellant and his co-accused were convicted and sentenced accordingly. 16.The key ingredients for a robbery with violence charge are found in section 296(2) of the Penal Code. It provides as follows-“if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death”. 17.The issues for consideration by this court are whether the appellant was positively identified and whether the prosecution did prove its case beyond reasonable doubt leading to a proper conviction and sentence. 18.The trial court records duly indicate that on the actual day of the ordeal, the appellant accosted PW2 and PW3 at an agency shop, pulled out a gun and instructed them to kneel down. Subsequently, PW2 cried out for help as she made an escape attempt, which piqued the curiosity of PW1 who rushed to the scene in order to aid those under attack. His life was also endangered when the gun was pointed straight at him, forcing him to run for his dear life, but not after he saw the face of the appellant. All three witnesses vividly recalled the appearance of the appellant and were able to identify him during the identification parades they participated in with the aid of PW6 who produced the identification parade form in court. Undoubtedly, the element of identification is satisfied. 19.Onto the second ground of appeal, the evidence proffered by the appellant was that he was arrested without cause by the roadside. Notably, this statement fails to create reasonable doubt that would weaken the case tabled by the prosecution, and is gravely insufficient to quash his conviction as prayed. Consequently, the appellant’s conviction with regard to both counts is affirmed. 20.Regarding the sentence, the appellant was sentenced to serve five years’ imprisonment on each count to run concurrently. During sentencing, the court considered the appellant’s mitigation, the fact that he was a first offender and exercised discretion. The sentence was also legal. 21.From the foregoing, I find that the appeal lacks merit and is dismissed in its entirety.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2026...................................D. KAVEDZAJUDGEIn the presence of:Appellant AbsentMs. Timoi h/b for Mr. Mutuma for the RespondentMs. Karimi Court Assistant.