https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12971

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA NO E032 OF 2024** **GEORGE MURUGU NJOKI…………………………………………………… APPELLANT** **-VERSUS-** **REPUBLIC……………………………………………………………………..RESPONDENT** **(Arising from conviction and judgement of Hon M. Ndumia (S.R.M) dated** **9th May 2024 in MCCR E488/2021 Kangema court)** **JUDGMENT** 1. The appellant was jointly charged with another with the offence of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. 2. The facts were that on the 4th day of July 2021 at around 2130 hours at Irima village, jointly with another robbed Charles Kiige Rwara off his mobile phone make Tecno pop (1) and cash Kshs 450/=all valued at Kshs 6450/= and immediately before or immediately after the time of such robbery, threatened to harm, the said Stephen Mutugi Kago. 3. After completion of trial the appellant was convicted to death sentence. **The Appellant’s Case;** 1. The appeal as advanced through the amended memorandum of appeal wherein he raised the following grounds of appeal 2. He submits that the conviction and sentence should not stand given that he was charged and prosecuted on the basis of a provision of the law that had already been declared and constitutional. 3. His next ground of appeal is that the charge sheet is defective since the same is a Duplex charge. 4. It is his case that the charge sheet was defective for being duplex because he was charged and a section 295 and 296 (2). 5. It is his case that these two sections of the panel code carry distinct and different offenses. It made it difficult for him to know which offense he was defending himself for. 6. Reliance is placed in the case of Joseph Njuguna. 7. He argues that the court should not uphold a conviction that is predicated on a defective charge sheet. 8. On another ground, he argues that the trial court fell into error by arriving at the impugned conviction notwithstanding the fact that the prosecution case was pegged on the unincorporated evidence of one Witness. 9. He argues that under the second 124 of the evidence act there is need to corroborate witnesses. 10. He further argues that where an offense is committed in a situation where the identification of the assailant is difficult then the need for corroboration is alive. 11. He argues that the offence was committed at night and the identification was difficult and unsafe. 12. He further argues that in an event the phone that was allegedly stolen never existed since the prosecution did not prove that it indeed existed. 13. He argues that the failure to uphold the corroboration requirement led to an illegal conviction and sentence which should be set aside. 14. On another ground, it is the appellant’s case that the trial court denied him the right to counsel. According to him this violated his right to fair hearing as guaranteed and 50 of the constitution. 15. He argues that without counsel then he was unable to defend himself sufficiently, given that the offense that he was faced carried a very heavy sentence. 16. He ultimately argued that the sentence made against him was severe, excessive and illegal. **The Respondent’s Case;** **Duty of the High Court as the 1st Appellate Court** 1. The High court as the 1st appellate court has duty to re-evaluate, re-assess the evidence tendered in the trial court and come up with it's own independent conclusion, **Okeno V Republic (1972) EA 32, Pandya V Republic (1957) E.A 336, Shantialal M Ruwala V R (1957) EA 570.** **The Law** 1. To prove the offence of robbery with violence under section 296(2) of the Penal Code, the element of stealing must be proved coupled with the elements set out in section 296(2) of the Penal Code namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. 2. The court of appeal in **Oluoch V Republic (1985) KLR** set out the essential elements to be:- 3. The offender is armed with any dangerous and offensive weapon or instrument; 4. The offender is in company with one or more person at or immediately before or immediately after the robbery, the offender uses actual violence on the victim. 5. It's trite that the three elements above should be read disjunctively and not conjunctively. 6. In **Patrick Opendo Opollo and another V R (CRA NO. 23 of 2014),** the court emphasized the need for court to scrutinize the condition of identification to ensure its reliability. 7. In the instant case, PW2 the complainant, testified that he was on board motor vehicle registration No. KCD when he was going home when he was followed behind by a bodaboda with two men. When he reached his destination the passenger on the bodaboda ordered him to stop. When he stopped, they started attacking him and he tried to run but they followed him and managed to get hold of him. He was cut by the appellant and took his phone with the cash. **On the issue of right to counsel;** 1. It submits that according to the trial the court's record it is clear that the appellant requested time to prepare his defence. 2. The court gave home the time and did proceed with the defence at a later date. 3. It is its submission that the appellant is raising issues which he never raised during [trial. It](http://trial.it) submits that there is no where he raised an issue of grudge between him and the victim. 4. The trial convicted the appellant based on the prosecution evidence. 5. It submits that the maximum mandatory sentence for robbery with violence is death. In the instant case, the appellant was sentenced to death. The issue of sentencing in robbery with violence cases is an ongoing litigation about the constitutionality of the death sentence. 6. The prosecution submits that the appeal has no merit and it should be dismissed. **Analysis and Determination;** The issue for determination is whether the appeal has merit. 1. **In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004** the Court of Appeal sitting in Kisumu held inter alia that:- *“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that”.* 1. The appellant argues that convicting him on the basis of one witness was illegal. 2. The question is whether the trial court gave careful consideration to the issue of identification and whether it scrutinized it thoroughly. 3. The first was **Gikonyo Karume & Another v Republic (1980) KLR 23 and Kariuki Njiru & 7 Others v Republic CR App No. 6 of 2001** (Unreported). 4. In Gikonyo’s case the court stated regarding identification evidence as follows: *“……before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of and the source of light in relation to the accused, and time taken by the witness to observe the accused so as to be able to identify him.”* 1. In Kariuki’s case the Court of Appeal stated: *“……the law of identification is well settled and this court has from time to time said that, evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibilities of error. The surrounding circumstances must be considered…….”* 1. The court shall now draw its attention to the issue of whether to inform the appellant to the right to counsel vitiated the trial and the conviction. 2. The appellant also Advance an argument that his right to fair hearing was violated since he was not given an advocate to represent him. 3. In **Republic vs Karisa Chengo and 2 others [2017] eKLR**, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that; “*In accordance with the language of the* [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.* 1. In the present case, it is clear from the proceedings the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial leads this court to the conclusion that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution). 2. The next issue is whether the charge sheet was duplex to the appellants prejudice. **Determination:** 1. The appeal lacks merit. **Order:** The appeal is dismissed. **Dated, Signed and Delivered Virtually at Eldoret this 29th day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**