https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10820

**‘** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL APPEAL NUMBER E020 OF 2024** **FREDRICK KALIUNGA……………………………………….…. APPELLANT** **VERSUS** **REPUBLIC….………………………….…..………………....…. RESPONDENT** *(****Being an appeal arising from the judgement on conviction and sentence passed on 25th January 2024 by Hon. KEN MUCHIRI (SRM) in Maua Criminal Case No. 306 of 2016).*** **JUDGMENT** 1. The appellant was charged before Maua Chief Magistrate’s Court with the offence of robbery with violence contrary to section 296(2) of the Penal Code. 2. The particulars of the charge were that on 1st January 2016 at Kiguru location in igembe south sub-county within Meru County, jointly with another and armed with weapons namely pangas robbed Jeremiah Mweriti of cash KSh 270,000/-and at the time of such robbery used personal violence to the said Jeremiah Mweriti. 3. The appellant denied the charge. After a full trial, the appellant was found guilty of the offence, convicted and sentenced to serve a sentence of six years imprisonment. 4. Aggrieved by the said conviction and sentence, the appellant filed a petition of appeal dated 18th April 2024, which raised the following grounds: 1. **The trial magistrate erred in law and fact by failing to appreciate the details of the first report, which indicated that the complainant had lodged a case of assault and had not mentioned of being robbed cash of Kshs.270,000/-.** 2. **The trial magistrate erred in law and fact by failing to find that the complainant did not lodge a complaint of robbery with violence.** 3. **The trial magistrate erred in law and fact by failing to find that it was fatal for the initial report and the statements of the prosecution eyewitnesses to lack the details and description of the attackers and yet the complainant and the alleged eye witnesses had stated that they were able to recognize them.** 4. **The trial magistrate erred in law and fact by failing to find that the circumstances at the alleged time of robbery were not conducive to allow proper identification of the alleged attackers.** 5. **The trial magistrate erred in law and fact by failing to find that it was fatal for the police not to have prepared an inventory report on the alleged stolen phone or a receipt of it whatsoever.** 6. **The trial magistrate erred in law and fact by failing to consider the defence evidence and to find it more credible and in particular consistent with the initial report of an assault case.** 7. **The trial magistrate erred in law and fact by failing to find that the prosecution witnesses were not trustworthy witnesses, as the entire evidence was full of glaring contradictions and discrepancies.** 8. **The trial magistrate erred in law and fact in finding that the prosecution had proved the charge of robbery with violence beyond any reasonable doubt.** 9. **The trial magistrate erred in law and fact by failing to consider the appellant's alibi tendered in his defence at the trail court** 10. **The trial magistrate erred in law and fact in finding a conviction that was against the weight of evidence.** 11. **The trial magistrate erred in law and fact by passing a harsh sentence under the circumstances**. **Appellant’s submissions** 1. In his submissions, the appellant averred that prosecution witnesses were untrustworthy, as the entire evidence was full of glaring contradictions and discrepancies. 2. Citing **Bukenya -vs- Uganda (1972) E.A 549** it was submitted that this court is entitled to draw an inference that their evidence would have been averse to the prosecution case. 3. It was further submitted that the identification of the appellants was based on “recognition” rather than “identification of strangers”. That the court accepted that because PW1 and PW3 knew the appellants before, they could identify them even with the bulb that was on. 4. On the sentence, the appellants submitted that the sentence of six years imprisonment was manifestly harsh, given that the injuries sustained by the complainant were not life-threatening. **Respondent’s submissions** 1. The state (DPP) submitted that the ingredients of the offence were proved, citing **Mwaka v Republic [2025] KEHC 2747 (KLR)** and **Dima Denge Dima & Others v Republic, 2013 eKLR** for the principle that the 3 elements are disjunctive and one element is sufficient. 2. The State further submitted that the appellant was identified with certainty, that it is him who committed the offence to the exclusion of any other person. That this was based on the following reasons; 3. ***PW1 and PW3 knew the appellants prior to the day of the offence, as they both hail from the area.*** **Analysis and Determination** 1. The onus on this court as a first appellate court is to re-evaluate the evidence afresh and arrive at its own independent conclusion. This principle was reiterated in **Okeno -Vs- Republic (1972) EA 32** where it was 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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.”*** 1. Similarly, in **Kamau Njoroge vs Republic** **[1987] eKLR**, the Court of Appeal stated: ***“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.”*** 1. The evidence presented before the trial court is summarised as hereunder. 2. PW1 was Jeremiah Mwereti, the complainant. His evidence was that on January 1, 2016, at around 3:00 am while at home, he was called outside by a group of six individuals and, upon peeping through his window, recognized the accused person under active security lights. The intruders broke his door using a fire block, prompting him to scream and hide in the ceiling. The men reached him and cut him on his head, arms, and legs, while demanding money from him. When he initially claimed to have no money, the attackers hit his wife with a machete, forcing him to hand over KSh. 150,000/-, while his wife gave them KSh. 120,000/- alongside their mobile phones. The men then left, and locked the complainant inside the house. He eventually escaped by jumping through a window, encountered churchgoers who included John Muchiri (PW2). They confirmed hearing the screams. He later sought treatment at Nyambene Hospital, where the medical officer filled out a P3 form. 3. PW1 maintained his stand that he had recognised the appellant, because they used to work together. 4. The said John Muchiri (PW2), stated on the material day at around 3:00 am. while returning from church, he saw six people fleeing from PW1’s house. They were carrying machetes. He recognised one of them as the appellant. He hid and thereafter he went to the complainant’s home. He found him injured and assisted him get to the hospital. He said that he was able to identify the appellant as there were security lights outside the complainant’s compound. 5. PW3 was Angelica Mukokinya. She stated that on the material day she and her husband (PW1) were asleep. Six intruders armed with machetes broke into their bedroom. Her husband attempted to escape by climbing towards the ceiling but was pulled down by the attackers and they cut him on the head. After he fell, the armed intruders demanded Ksh. 1,000,000/-. She gave them Ksh. 120,000/- and they took Ksh. 150,000/- from her husband, beside taking two mobile phones, a jacket, and three trousers. That following the attack, she screamed, and PW2 arrived at the scene, and he assisted her husband (PW1) get to the hospital. She further stated that she was able to identify the accused person as part of the gang because they are neighbours and an electric bulb had been left on in the room. 6. PW4 was Barnice Maingi, a clinical officer based at Nyambene Sub-County Hospital. She testified that she was the one who attended to PW1 on 2nd January, 2016. That on examination, he had cut wounds on the forehead, on the posterior lower back and on the right upper arm extending to the elbow. She said that the probable type of weapon used a sharp object. She produced the P3 Form and the treatment notes as exhibits. 7. PW5 was Corporal Joseph Masanga. He averred that he took up this case after the demise of PC Gitau who was the investigating officer. He further stated that he visited the scene on 2nd January, 2016 as he was assisting the investigating officer where he noted that there was a forcible entry to PW1's house and that PW1 told them the logs which were outside his house were used to break into his house. He produced three photographs of the scene and the certificate thereof as exhibits. 8. In his defence evidence, the appellant person stated that on the night of 31st December, 2015 he was asleep in his house with his wife and children. He denied attacking the complainant as alleged. 9. The appellant stated that he was a friend to the complainant and had given him KSh. 50,000/- and that the complainant had framed him for this offence as he reneged on paying him back the money. 10. DW2 was Fridah Muthoni, the appellant’s wife. She stated that on the night of 31st December, 2015, she was asleep with the appellant and that he never left the house that night. She further stated that the appellant and the complainant and that the allegations against the former were false. She further told the court that the appellant used to transport items for the complainant and that he was given KSh. 50,000/- by the appellant, but failed to pay back, then framed him in this case. 11. DW3 was Charles Mugambi Romano. He testified that he is a neighbour to both the complainant and the appellant. That on the night of 31st December, 2015, he was at home and that when he heard screams from outside, he called the appellant, who said that he was at home. 12. The offence of robbery with violence is set out in section 296(2) of the Penal Code and it states as follows: **“if the offender is armed with any dangerous or offensive weapon or instrument, or it in company with one or more other person or persons, or if, 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, he shall be sentenced to death.”** 1. The ingredients of the offence of robbery with violence were clearly enumerated by the Court of Appeal in the case of **Oluoch Vs Republic (1985) eKLR where it was held that;** **“Robbery with violence is committed in any of the following circumstances”** 1. **The offender is armed with any dangerous and offensive weapon or instrument; or** 2. **The offender is in company with one or more person or persons; or** 3. **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.** 4. As was correctly stated by the trial court these ingredients are disjunctive and if any of them is proven then the offence is complete. 5. From the evidence adduced it is clear that there were 6 men, all armed with assorted weapons. They allegedly took the complainant’s property. They also left him with injuries that were confirmed by the clinician. 6. The police officer (PW5) confirmed that he visited the scene and saw the damage to the door to the complainant’s house. 7. In my view, all the indicators point to a robbery having taken place that night and all the three ingredients of the offence of robbery were established. 8. The crucial question is whether the appellant was identified as one of the robbers. 9. PW1, PW2 and PW3 all testified that the appellant was among the robbers. The complainant and his wife knew the appellant well. The lights were on. 10. Muchiri (PW2) also knew the appellant. He said that there were lights in the complainant’s compound and this enabled him to see the appellant. 11. I have carefully examined the evidence of identification. Although it was at night, the lights were on. This was a case of recognition and I am satisfied that the appellant was well placed at the scene. 12. The appellant’s position was that he never left his house that night. That he was being fixed by the complainant. 13. The question is, did the appellant inflict the injuries on himself just to fix the appellant? That is very unlikely. 14. The appellant pointed to alleged contradictions in the prosecution’s evidence. I have analysed the same and I don’t see any material contradiction. The evidence of PW1 and PW3 were categorical that it was the appellant who attacked and robbed them. The appellant is a person well known to them. 1. The appellants submitted that the evidence of identification was wanting but given what I have stated above, I find that PW1 and PW3 were able to identify the appellant. PW2 placed the appellant right outside the complainant’s home at the material time. 2. The appellant further argued that the trial court did not consider the defence and the alibi raised. 3. A court is bound to consider any evidence adduced in defence, however weak or improbable it is. 4. Looking at the trial court record, I find that the court duly noted the defence adduced and found that it did not rebut the overwhelming evidence adduced by the prosecution. 5. The onus on this court is to determine whether that defence was plausible enough to cast reasonable doubt on the prosecution case. 6. I have duly considered the alibi raised by the appellant, and I find it not enough to rebut the prosecution case, placing him at the scene that night. I have not found any sound ground to hold that there was a grudge between the parties that could have led to fabrication of charges against the appellant. 7. As such, just like the trial court, I find that the defence did not raise any reasonable doubt against the prosecution case. 8. Consequently, I uphold the conviction. 9. On sentence, the appellant was of the view that the same was harsh and excessive. 10. The offence of robbery with violence has a mandatory sentence of a death. 11. There is settled law in **Francis Karioko Muruatetu and Another vs Republic (2021) eKLR** that the principles set out in **Francis Karioko Muruatetu and Another vs Republic (2017) eKLR** did not apply to any other offence other than murder. The Supreme Court reiterated this position in **Godrick Simiyu Wanga vs Republic [2024] KESC 38 (KLR)** when it held as follows; **“In terms of Article 163(7) of the Constitution, we expect all Superior and Subordinate Courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu Directions, where we elucidated in the passage below what was intended to be the ratio decidendi in the Muruatetu Case:** ***“In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.”* [Our Emphasis]** **We say no more, save to recapitulate that our decision in the *Muruatetu Case* did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the *Muruatetu Case* applies only with respect to the mandatory nature of the death sentence under Sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.”** 1. As matters stand, going by the decision cited above, the only penalty that can be imposed in a robbery with violence case is the death penalty. Therefore, the trial court fell into error in imposing an alternative sentence. 2. This court has powers to revise the sentence and impose the legal sentence, but I note that the Prosecution did not give a notice of enhancement of sentence. It would thus be highly prejudicial to impose the higher sentence, without according him an opportunity to address the court. 3. I will therefore not disturb the sentence. 4. In conclusion the appeal by the appellant is hereby dismissed. 5. The appellant, who has been out on bond pending appeal, is to be taken back into custody to serve the remainder of his sentence. **Dated, Signed & Delivered at Meru this 16th day of July, 2026.** **H. M. NYAGA** **JUDGE**