https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6808

Osango v Republic (Criminal Appeal E031 of 2025) [2026] KEHC 6808 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEHC 6808 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E031 of 2025 RN Nyakundi, J May 19, 2026 Between Evans Osango Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon J. A. Agonda (SPM) delivered at Vihiga in Senior Principal Magistrate’s Court in Criminal Case No E788 of 2023 on 3rd December 2025) Judgment 1.The Appellant herein was charged jointly with three (3) others not before this Court with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code Cap 63 (Laws of Kenya) on count I. 2.The particulars were that on the night of 10th October, 2023 at Masigulu Village, Chango Sub-location Central Maragoli, Vihiga County jointly with others not before the Court while armed with dangerous weapons namely pangas robbed Annaciata Barusi Kadima Kshs 17,000/= and immediately after the time of such robbery injured one Wilberforce Kedogo. 3.He was also charged of the offense of grievous harm contrary to Section 234 of the Penal Code Cap 63 (Laws of Kenya) on count II. 4.The particulars were that on 10th October, 2023 at Masigulu Village, Chango Sub-Location Central Maragoli, Vihiga County jointly with others not before the Court while armed with dangerous weapons unlawfully did grievous harm to Atonya Wilberforce. 5.He was tried and convicted of the two (2) offences and was sentenced to twenty-five (25) years imprisonment. 6.Being dissatisfied with the said Judgement, on 23rd December 2025, he lodged the Appeal herein. The same was dated 22nd December 2025. He set out five (5) Grounds of Appeal as follows:-a.That the trial Court erred in law and in fact in not making a finding that the ingredients of robbery with violence were not proved beyond reasonable doubt.b.That the trial Court erred in law and in fact in breaching the Appellant’s Constitutional rights hence occasioning a miscarriage of justice.c.That the trial Court erred in law and fact in admitting evidence that was obtained in a manner that was detrimental to justice hence unfair trial.d.That the trial Court erred in law and fact in not weighing the conflicting prosecution evidence which were consequential to conviction.e.That the trial Court erred in law and in fact in not considering procedural errors which were inconsequential to conviction. 7.His Written Submissions were dated 19th March 2026 and filed on 23rd March 2026 while those of the Respondent were dated 22nd April 2026 and filed on 13th May 2026. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety. Analysis and Determination 8.It is settled law that the duty of a first appellate Court is to evaluate afresh the evidence adduced before the trial Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 9.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 where the Court therein held that the appellate Court was not bound by the findings of fact of the trial Court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect. 10.Having looked at the Appellant’s Petition of Appeal, his Written Submissions and those of the Respondent, it appeared to this Court that the issues that had been placed before it for determination were as follows:-a.Whether or not the Prosecution proved its case beyond reasonable doubt; andb.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. 11.The Court dealt with the said issues under the following distinct and separate heads. Proof of Prosecution Case 12.Grounds of Appeal Nos (1), (2), (3), (4) and (5) were dealt under this head. 13.The Appellant reproduced the evidenced of PW 1 and PW 2 and submitted that the time was too short for identification despite the presence of security light and outside bulb, PW 1 and PW 2 could not identify positively the attackers who had a panga and an iron bar. Hence the time under observation was short for positive identification. He blamed PW 1 for having reported at first that she could not identify her attackers that material night. In this regard, he placed reliance on the case of Kiarie vs Republic (eKLR citation not given) where it was held that it was possible for witness to be honest but mistaken and for a number of witnesses be all mistaken. 14.He also faulted PW 1 and PW 2 for not describing his appearance to the authority on their first report. To buttress his point, he relied on the case of Maitanyi vs Republic (1986) KLR 198 where it was held that if a witness receives a very strong impression of the features of the assailant, the witness will usually be able to give some description and if on the other hand the witness says that he or she could not identify or recognize the person, then a later identification or recognition must be suspect unless explained. 15.He argued that the identification was conducted without fairness as the parade officer did not inform him of his right to call a friend or solicitor to be present during the identification parade and that PW 1 and PW 2 did not give the description of their assailant nor report that they could identify them if they were made to see them in their first report. In this regard, he cited the cases of Nathan Kamau Mugwe vs Republic Criminal Appeal No 63 of 2008 and Gabriel K. Njoroge vs Republic (1982-88) 1 KAR 1134. 16.He argued that nothing belonging to the complainant was recovered from him and that he was arrested from his home and there was no evidence on record that he went on hiding after the incident. He added that the 1st Accused person at the trial Court (his co-accused) was a psychiatric hence his oral evidence and confession that led to his arrest was not reliable. He argued that he was not given a chance to cross-examine the said co-accused to test the veracity of his confession. In this regard, he relied on the case of Kiarie & Another vs Republic (1986) KLR 281 where it was held that there was fatal failure on the part of the trial magistrate to inform and accord the appellant of his right to cross-examine the appellant which resulted into a miscarriage of justice. 17.He further argued that the trial Court erred in not complying with Section 214(i), (ii) of the Criminal Procedure Code after amendment of the charge. He placed reliance on the cases of Yongo vs Republic (1983) KLR 319 and Harrison Murungu Njuguna vs Republic Criminal Appeal No 90 of 2004 where it was held that it was vital for the witnesses to be recalled to re-identify the accused persons in their new position. 18.He pointed out that in his case, the charge sheet was read to the appellant a fresh and plea of not guilty taken but the trial Court failed to inform him of his right given to him by the law to recall witnesses to give evidence a fresh on the amended charges or to cross-examine the witnesses further, hence not curable under Section 382 of Criminal Procedure Code. He argued that therefore the proceedings were fatally defective. 19.On its part, the Respondent placed reliance on the cases of Johanna Ndung’u vs Republic Criminal Appeal No 116 of 2005 (unreported) and Oluoch vs Republic[1985]KLR where it was held that robbery was committed where the offender was armed with any dangerous and offensive weapon or instrument or the offender was in company with one or more person or persons or at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person. 20.It asserted that it was also crucial in addition to there being one of the set-out ingredient of robbery with violence was the need to positively identify the assailants in question as held in the case of Suleiman Kamau Nyambura and Republic Criminal Appeal No 5 of 2013. 21.It also placed reliance on the case of Wahungu vs Republic[1989] KLR 424 where it was held that evidence of visual identification in criminal cases could bring about miscarriage of justice and it was of vital importance that such evidence was examined carefully to minimize this danger and the case of R vs Turnbull [1977] QB 224 where it was held that if the quality of the identification evidence was good and remained good at the close of the accused’s case, the danger of mistaken identification was lessened, but that the poorer the quality the greater the danger. 22.It was emphatic that the prosecution proved the case beyond reasonable doubt. It urged the Court to dismiss the appeal herein. 23.PW 1, Wilberforce Kedogo Atonya, testified that on the material day of 10th October 2023 at 5.00a.m, he was at his house at Mazungulu with his family who were still asleep when he heard noise from the other room. Her sister was screaming at the shop asking for help she said, “please do not cut her, she is a small child, if its money let me give you”. He said that he left his house and went to her sister’s house using the front door few meters away and tried peeping through the window. 24.It was his further testimony that there were people standing outside and there was street light and bulb light was on. He stated that he then saw three (3) people and when he opened the door they panicked and they wanted to escape. They were coming towards him and he managed to hold one and one man and the other came wielding pangas. He said that they all came cutting him on the head (5) times and hitting him with an iron rod. He concluded that he had 22 cuts on his body. 25.He stated that as they were attacking him, his wife and children continued screaming for help. The attack took ten (10) minutes and that the neighbours came and he lost consciousness. He added that he was bleeding on the head, chest, shoulders and the whole body was oozing blood. He was rushed to hospital in Mbale and was treated and discharged. 26.He further stated that the attackers were four (4) and did not have masks. He stated that he did not know the attackers before the incident but he could identify them after the incident. He added that he was able to identify the Appellant herein together with his co-accused (s) at the identification parade. He pointed out that they had found a small phone button at the scene which was on and they did not handle it. The Police took the phone which was at the scene when they arrived. 27.PW 2, Annaciata Barasi Radima, testified that on the material day, she had opened the shop at 5.00a.m as usual and was lighting her jiko outside. When she got back to the house she met five (5) men entering into her house that was attached to the shop. The men told her that they were police officers and that they had been told that she sells cigarettes. She stated that they were in plain clothes and did not have face masks 28.Three of the men pushed her into the shop asking if she was selling cigarretes, one of them tried opening the store and placed a padlock, three (3) of the men pulled their shirts and removed pangas and metal rods. They were all armed. They asked for money as they ransacked her bags and shelves removing shop items and bags contents. She said that she told them that she had money and gave them. They took Kshs 17,000/= from her bag and airtime and goods from the shop. When she tried screaming one of them hit her with a panga on the head. 29.They went to another room and wanted to kill a child but she told them not to kill him. They went back to the shop and asked for money and PW 1 came to the veranda. She said that she was held by two of them and one had left to attack her brother. The two then released her and started attacking her brother. She screamed that robbers were killing her brother and a boda boda rider stopped and came to the scene and the robber escaped. 30.She corroborated the evidence of PW 1 that he was cut on the head, hands and back and was severely injured. She also stated that they found the phone at the scene and that she did not know the attackers before the incident but identified them at the identification parade. 31.PW 3, Emily Mugasia, testified that she was a neighbor and a village elder. She confirmed that she went to the shop that morning and found PW 1 injured and PW 2 told her that they had been attacked and the shop robbed. 32.PW 4, No 82260 Corporal Summy Sanchu, the investigating officer’s evidence corroborated that of PW 1, PW 2 and PW 3. He added that when they visited the scene they found the place had blood sprinkled all over and a phone IMEI No 351528042803325 Airtel Line 07844728074 that they used for their investigations. He added that they did a phone analysis that led them to one Bonface who took them to the Accused persons. When they ransacked his house, they found axe, panga and several phones, they took the items to the police station and arraigned the accused persons. He said that the panga was used to cut PW 1 and the metal rod was used to break doors. He produced the panga and the metal rod as exhibits in Court. 33.PW 5, Boaz Alion, Clinical Officer, confirmed having treated PW 1. He noted that he had several fractures on front, side and back, outer scalp had cuts and the head had eight (8) cuts, right ear cut and in total had 22 cuts and stitched. He produced a P3 form as exhibit in this case. 34.Notably, PW 1 and PW 2 confirmed that although they did not know their attackers before the incident, they could identify them after the incident. PW 1 noted that there was street light and bulb light thus sufficient lighting conditions. PW 1 and PW 2 also noted that the attackers were not in face masks. PW 2 confirmed that she kept moving with them from one room to another and PW 1 noted that the incident took about ten (10) minutes. That was sufficient time for PW 1 and PW 2 not to have been mistaken about their faces. 35.In addition, PW 1 and PW 2 were able to identify the Appellant at the identification parade. 36.It was therefore clear from the evidence that was adduced by the Prosecution that PW 1 and PW 2 positively identified the Appellant as having been one of the attackers on the material night. His argument that the Prosecution failed in conducting an identification parade therefore fell on the way side. 37.The fact that a phone was recovered at the scene and the same was used to trace the attackers squarely placed the Appellant herein as one of the perpetrators on those material nights. 38.Turning to the issue of whether or not the Prosecution demonstrated the elements of the offence of robbery with violence herein, Section 295 of the Penal Code stipulates that the elements of robbery with violence are :-a.That the offender is armed with any dangerous weapon or offensive weapon or instrument;b.That the offender is in the company of one or more persons;c.That 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. 39.PW 1 and PW 2 confirmed having seen their attackers with pangas and metal rod. It was evident from the evidence of both PW 1 and PW 2 that the Appellant was in the company of others during the attacks. There was robbery. Indeed, PW 1 testified that the Appellant and his Co-Accused persons robbed her of Kshs 17,000/=, airtime and goods from the shop. 40.It was clear from the aforesaid evidence that the Appellant was in the company of his Co-Accused persons. They were armed with a sharp object and that during, immediately before and after the offence they wounded PW 1. They slapped PW 2 with a panga on the head and robbed them of the items from the shop. 41.The chain of events was unbroken. The Trial Court thus proceeded correctly when it found that all the ingredients of proving the offence of robbery with violence had been satisfied and hence convicted him accordingly. 42.Going further, Section 214 (1)(i) of Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that:-“Where, at any stage of a trial before the close of the case for the prosecution, it appears to the Court that the charge is defective, either in substance or in form, the Court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the Court thinks necessary to meet the circumstances of the case:Provided that where a charge is so altered, the Court shall thereupon call upon the accused person to plead to the altered charge” 43.Notably, a perusal of the proceedings herein indicated that the Charge Sheet was amended on 1st September 2025 and the Appellant was subjected to taking of plea afresh and a plea of not guilty entered. The Trial Court did not indicate whether it notified the Appellant his right to recall witnesses. 44.Be that as it may, the amendment was done to delete the name of the 1st Accused person who had been discharged under Section 87A of the Criminal Procedure Code to assist him seek treatment. 45.To the mind of this Court, the amendment did not affect the flow of evidence in any way to warrant the recall of witnesses, thus the proceedings were not defective in the circumstances. 46.In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4) and (5) of the Petition of Appeal were not merited and the same be and are hereby dismissed. Sentencing 47.The Appellant did not raise any ground of appeal on this issue but submitted on the same. The Respondent did not submit on the issue of sentencing. This Court found it prudent to determine the issue for completeness of record. 48.Notably, the Appellant was found guilty of the offence of robbery with violence. Section 295 of the Penal Code states that:-“Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.” 49.Further, Section 296 (1) and (2) of the Penal Code provides as follows:-a.Any person who commits the felony of robbery is liable to imprisonment for fourteen years.b.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. 50.The Trial Court sentenced the Appellant to twenty-five (25) years imprisonment. In the mind of this Court, the Trial Court was lenient as it had the option of sentencing him to death. 51.The guiding principles on review of sentence post-conviction is well articulated by the Court of Appel in the case of Benard Kimani Gacheru vs. Republic [2002] eKLR:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. on appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 52.What this means primarily is that an appeal’s court can only review a sentence found to be illegal, irregular or not in accordance with justice. The Appellant in his appeal has not demonstrated by way of evidence or any provisions of the law that the sentence in question which imposed by the trial court is irregular, wrong in principle and not within the legislative scheme provided for in the Act during the enactment of the law. 53.In view of the seriousness and gravity of the circumstances surrounding the commission of the offence as stated by the Prosecution witnesses particularly the victims of the offence in respect of that situation at hand involving the accused person and his co-perpetrators there are no compelling and substantial circumstances in which this sentence can be reduced to a lesser term as submitted by the Appellant. Therefore, the power of review of sentence lacks merit and as also with the ground on conviction the appeal is also lost on the same strength. Disposition 54.Consequently, the following orders shall abide:a.That the proceedings in the matter before the Court were held in accordance with justice.b.That the conviction and sentence are hereby affirmed by this appeal’s Court.c.That the Appellant has a right of appeal to the Court of appeald.Orders accordingly. DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.R. NYAKUNDIJUDGE