https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13042

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E025 OF 2026** **EVANS WANYONYI…….……….…………………………..…….APPELLANT** **VERSUS** **REPUBLIC…………………………………..……………………..RESPONDENT** *(Being an appeal against the original conviction and sentence delivered by Hon. A. Mwangi (C.M) on 8th December 2025 at Kibera Chief Magistrate’s Court Criminal Case No. E.2088 of 2024 Republic vs Evans Wanyonyi)* **JUDGEMENT** 1. The appellant was charged and after a full trial convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to serve fifteen (15) years imprisonment to run concurrently. 2. Aggrieved, he filed the present appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He challenged the charged sheet as being defective. He complained that the sentence imposed was unlawful. He urged the court to quash his conviction and set aside the sentence imposed. 3. Before delving into the specific re-evaluation of the evidence on record, I will deal with the preliminary issue raised by the appellant thus: the charge sheet was defective for duplicity. The appellant contended that he charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) are two separate offences intertwined as one. He argued that as a consequence, his conviction on a defective charge sheet was unsafe. 4. The Court of Appeal in **Paul Katana Njuguna v Republic [2016] eKLR** considered the issue of duplicity where the appellant had been charged with the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code. The Court observed as follows; *“Having considered the law on duplicity as it has evolved, can we say that the charge as framed in the appeal before us was so defective as to have occasioned a failure of justice? Can it be said with any certainty that the said defect is incurable under Section 382 of the Penal Code. We observe that the offence under Section 295 and 296 (2) were not framed in the alternative. So, following the decision in Cherere s/o Gakuli -v- R (supra) Laban Koti -v- R. (supra) and Dickson Muchino Mahero v R. (supra), the defect in the charge herein is not necessarily fatal.”* 1. In this case, the appellant understood the charge against him, participated in the hearing by cross examining the witnesses and mounted his defence at the close of the prosecution case. He did not raise any complaint before the trial court and in the circumstance, I find that there was no miscarriage of justice on the ground that the charge was duplex. 2. 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 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**). 3. The prosecution called three witnesses in support of its case. PW1 Paul Owuor Oudo, the complainant, testified that on 6th October 2024 at about 5:30pm, whilst at Campi Centre, he encountered the appellant in the company of two others. He stated that the three blocked his path, one held him by the neck, another took his phone, and the appellant struck him on the head with a plastic chain. 4. PW1 stated that he attempted to free himself, in the process tearing his jacket, which he identified in court. As he ran for safety, he approached a woman who was selling vegetables, but she too fled. He fell down and the assailants continued to assault him using stones. He testified that they robbed him of an Itel phone valued at Kshs. 2,500 and Kshs. 500 in cash. He identified the purchase receipt for the phone in court. 5. PW1 further testified that members of the public subsequently arrived at the scene, causing the assailants to flee. He stated that the appellant was leading the others as they pursued him. He thereafter sought treatment at Fremo Medical Centre and identified his treatment notes in court. He subsequently reported the matter at Mutuini Police Station and, upon being advised by the police, proceeded to Kawangware Hospital for further treatment. He was issued with a P3 form, which he identified in court. He testified that the robbery occurred at about 5.00 p.m. in broad daylight and that he was therefore able to see the appellant. 6. On cross-examination, PW1 stated that he used to see the appellant daily at a scrap metal yard. He confirmed that no identification parade was conducted. 7. PW2 Dr. Kamua Maringe, a police surgeon, testified that on 11th October 2024, he examined PW1, who complained of tenderness in the occipital region and headache. He stated that the injuries were approximately five days old and had been caused by a blunt object. He assessed the degree of injury as harm. He further testified that PW1 had been treated at Riruta Level 4 Hospital on 8th October 2024. Having perused the treatment notes, he found them consistent with his findings. He produced the P3 form and treatment notes in evidence. On cross-examination, PW2 stated that a fist or kick could constitute a blunt object. 8. PW3, PC Toughes Ombati Muturi, the investigating officer, testified that on the evening of 6th October 2024, PW1 reported that while on his way home at Fremo Area, he encountered three persons known to him, among them the appellant. He reported that the three attacked him using a plastic chain and a metallic object, causing injuries to his head and knee, and robbed him of his phone valued at Kshs. 2,500 and Kshs. 500 in cash. PW3 stated that he referred PW1 to Fremo Medical Centre for treatment. 9. PW3 further testified that on 7th October 2024, PW1 returned to the station, recorded his statement and was issued with a P3 form. On 12th October 2024, PW1 informed him that he had seen one of his attackers at Kinuthia Centre. PW3, accompanied by his colleagues, proceeded to the centre and arrested the suspect, who identified himself as Evans Wanyonyi. PW1 subsequently identified him to the police. PW3 testified that he thereafter interrogated and charged the appellant. He produced PW1's jacket and the purchase receipt for the phone in evidence and identified the appellant in court. 10. On cross-examination, PW3 stated that no identification parade was conducted because PW1 knew the appellant well. He testified that PW1 had informed him that he knew the appellant and that this fact was recorded in his statement. 11. On 21st October 2025, the Court found that the appellant had a case to answer and placed him on his defence. He elected to give sworn evidence and did not call any witnesses. 12. The appellant testified that on 12th October 2024, as he was leaving his place of work at Waithaka, he encountered two men and six youths seated on the ground. He stated that the two men ordered him to stop, threatening to shoot him if he failed to comply. He obeyed and sat with the others. He testified that they were subsequently taken to Mutuini Police Station, without being informed of the offence he had committed. He stated that he spent the night at the police station and that, the following day, the arresting officer demanded Kshs. 5,000 for his release, which he was unable to raise. He was thereafter arraigned and charged with the present offence. He denied having committed the offence. 13. On cross-examination, the appellant maintained that he did not know PW1 and had seen him for the first time in court. 14. After a full trial, the appellant was convicted and sentenced accordingly. 15. The appeal was canvassed by way of written submissions by the parties, which have been duly considered. 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”.** 1. The offence of robbery with violence is established where the prosecution proves the act of stealing and, in addition, that the offender was armed with a dangerous or offensive weapon, was in the company of one or more persons, or immediately before or immediately after the robbery used or threatened to use actual violence against the victim. Proof of any one of these circumstances is sufficient. See **Dima Denge Dima & Others v Republic, NRB CA Criminal Appeal No. 300 of 2007 [2013] eKLR** and **Oluoch v Republic [1985] KLR 549.** 2. The first issue is whether there was a stealing. PW1 testified that during the incident his Itel mobile phone, valued at Kshs. 2,500, and Kshs. 500 in cash were taken from him. He produced the purchase receipt for the phone, which was admitted in evidence. PW3, the investigating officer, confirmed that PW1 reported the loss of the phone and cash. The evidence established that PW1's property was taken without his consent and with the intention of permanently depriving him of it. The element of stealing was therefore proved. 3. The next issue is whether the stealing was accompanied by any of the circumstances contemplated under section 296(2) of the Penal Code. PW1 testified that three men blocked his way, one held him by the neck, another took his phone, while the appellant struck him on the head with a plastic chain. When he attempted to escape, he fell and the assailants continued to beat him with stones. PW2, the police surgeon, examined PW1 five days later and found tenderness in the occipital region and a headache. He assessed the degree of injury as harm. The evidence consequently established that actual violence was used against PW1 during the robbery. 4. The evidence also placed the appellant in the company of other persons during the robbery. PW1 testified that he encountered the appellant together with two other men, who acted together in blocking and assaulting him before his property was taken. He specifically identified the appellant as the person who struck him on the head with a plastic chain. PW3's evidence was consistent with PW1's account of an attack by three persons, among them the appellant. The alternative ingredient of the offence was therefore established. 5. The identity of the assailants was also material. PW1 testified that he knew the appellant, having seen him daily at a scrap metal yard. He stated that the incident occurred at about 5.00 p.m. in broad daylight and that he was able to see the assailants. He specifically attributed the assault with the plastic chain to the appellant. The appellant was subsequently arrested after PW1 reported seeing him at Kinuthia Centre, where PW3 testified that PW1 identified him as one of his attackers. Although no identification parade was conducted, the complainant's evidence was that the appellant was previously known to him. The absence of an identification parade did not, in those circumstances, undermine the identification evidence. 6. The appellant denied knowing PW1 and maintained that he had first seen him in court. That denial fell for consideration alongside the prosecution evidence. Having considered the identification evidence as a whole, the circumstances afforded PW1 a sufficient opportunity to recognise the appellant. The evidence sufficiently connected the appellant to the robbery and the trial court was entitled to find that he was one of the assailants who participated in the offence. 7. The medical evidence further supported the occurrence of violence. PW2 examined PW1 on 11 October 2024 and found tenderness in the occipital region and a headache. He assessed the injuries as harm and found the treatment notes from Riruta Level 4 Hospital consistent with his findings. Although the medical evidence did not identify the assailant, it corroborated PW1's account that he was assaulted during the incident and supported the prosecution case on the element of violence. 8. Considered cumulatively, the evidence established the stealing of PW1's property, the use of actual violence and the participation of the appellant together with other persons. The evidence also sufficiently connected the appellant to the offence. The prosecution therefore proved the essential elements of robbery with violence beyond reasonable doubt. The trial court properly evaluated the evidence and reached the correct conclusion that the charge had been proved. The conviction was accordingly proper. 9. The appellant contended that essential witnesses had not been called. Section 143 of the Evidence Act provides that, subject to any contrary provision of law, no particular number of witnesses is required to prove any fact. The prosecution called PW1, the complainant, PW2, the medical officer, and PW3, the investigating officer. Their evidence addressed the material aspects of the charge, including the robbery, the violence inflicted upon PW1, the resulting injuries, the identification of the appellant and the investigation of the offence. The prosecution was not required to call every person who may have had some knowledge of the circumstances. I therefore find no basis for drawing an adverse inference from the failure to call additional witnesses. This ground accordingly fails. 10. The appellant was sentenced to fifteen (15) years' imprisonment. From the sentencing proceedings, the trial court considered the pre-sentence report, the appellant's mitigation and the applicable law. The sentence imposed was lawful and proportionate to the gravity of the offence. I find no basis upon which this Court should interfere with the trial court's exercise of its sentencing discretion. 11. In the premises, the appeal lacks merit and is hereby dismissed in its entirety. Orders accordingly. **Judgement dated and delivered virtually this 18th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**