https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8745

Kiplangat alias Keringet v Republic (Criminal Appeal E047 of 2023) [2026] KEHC 8745 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8745 (KLR) Republic of Kenya In the High Court at Bomet Criminal Appeal E047 of 2023 JK Ng'arng'ar, J June 23, 2026 Between Godwin Kiplangat alias Keringet Appellant and Republic Respondent (From the Conviction and Sentence in Criminal Case Number E021 of 2023 by Hon. Boke. in the Senior Principal Magistrate’s Court at Bomet) Judgment 1.The Appellant alongside another was charged with two counts. On the first count, he was charged with robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of this offence were that on the night of 24th December 2022 at around 0030 hrs in Bomet Town within Bomet County jointly with others not before court robbed Wilson Soi 1 mobile phone make ITEL 2160 containing Kshs 100,341/= in the Safaricom Sim card, 1 airtel Sim card, National Identity Card s/n 2357698 and a torch all property valued at Kshs 113, 814/- and immediately after the said robbery threatened to stab the said Wilson Soi with a knife. 2.On the second count, he was charged with conveying suspected stolen property contrary to section 323 of the Penal Code. The particulars of this offence were that on 5th January 2022 at around 2000hrs in Bomet Town within Bomet County having been detained by No. 233917 PC Franklin Okwora and No. 90923 PC Patrick Nyaoke as a result of the exercise of powers conferred by section 26 of the Criminal Procedure Code, had in possession of the items as per the attached inventory reasonably suspected to have been stolen. 3.The Appellant pleaded not guilty to the counts before the trial court and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case, while the Appellant testified and closed his case. 4.At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Appellant and he was put on his defence. 5.At the conclusion of the trial, the Appellant was convicted of the first count of robbery with violence and sentenced to 20 years imprisonment. He was also convicted of the second count of conveying suspected stolen property and sentenced to serve 1 year imprisonment. The sentences were to run concurrently. 6.Being dissatisfied with the Judgment dated 14th September 2023, the Appellant, Godwin Kiplangat Kirui appealed to this court against his sentence and conviction. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh and come to my own conclusion. 7.I hereby procced to summarise the Prosecution’s and Respondent’s case in the trial court as well as their respective written submissions in the present Appeal. The Prosecution’s Case. 8.It was the Prosecution’s case that on the material night (24th December 2022), the Appellant and others violently robbed Wilson Soi (PW1) off his mobile phone make ITEL 2160, his National Identity Card and torch while threatening to stab him with a knife. The victim (PW1) stated that he was attacked by four men while on his way back home and they demanded for his M-pesa PIN and threatened to kill him if he failed to do so. PW1 further testified that the attackers grabbed him on his neck and injured him. 9.It was the Prosecution’s case that fearing for his life, he gave up his M-pesa PIN and the Appellant transferred Kshs 98,840/- that he had in his M-pesa account to his (Appellant) number. It was the Prosecution’s further case that the Appellant was positively identified by the victim (PW1) through the presence of sufficient street lighting. 10.Through their written submissions dated 27th February 2026, the Respondent submitted that they proved that robbery with violence occurred. That PW1 and PW2 testified that the assailants were armed with a knife which they used to threaten them. The Respondent further submitted that the assailants were more than one. 11.It was the Respondent’s submission that the Appellant and his accomplices took away the victim’s belongings and withdrew Kshs 101,000/= from the victim’s M-pesa account. That the Appellant was positively identified by the victim. It was the Respondent’s further submission that the 20-year sentence was lenient bearing in mind the maximum sentence being death. The Appellant’s Case. 12.The Appellant (DW1) denied committing the offence as he way away on the material night. DW1 testified that he received money on his number but it was not sent by the Appellant but by one Marlon Ngetich. DW1 further testified that he ran a miraa business and would receive money in his M-pesa number as he had displayed his number in his shop. 13.It was DW1’s testimony that the items recovered in his shop belonged to the 2nd Accused Anos Kimutai Cheruiyot as he was a co-owner of the shop. 14.At the time of writing this Judgement, the Appellant had not filed his written submissions despite being directed to do so by this court. I shall thus rely on his grounds of Appeal. 15.I have gone through and given due consideration to the trial court’s proceedings, the home-made grounds of appeal filed on 9th October 2023, and the Respondent’s written submissions dated 27th February 2026. The following issues arise for my determination: -I.Whether the Prosecution proved its case beyond reasonable doubt.II.Whether the Defence casts doubt on the Prosecution case.III.Whether the sentence was harsh and excessive. I. Whether the Prosecution proved its case beyond reasonable doubt. 16.Under this heading, I shall cover both count 1 and 2. The Appellant was charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. Section 295 of the Penal Code defines robbery as: -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. 17.Section 296 of the Penal Code states as follows: -(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(2)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. 18.The Court of Appeal in the case of Johana Ndungu v Republic [1996] KECA 187 (KLR) set down the ingredients of robbery with violence by stating thus: -“In order to appreciate properly as to what acts constitutes an offence under section 296 (2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:1.If the offender is armed with any dangerous or offensive weapon or instrument, or2.If he is in company with one or more other person or persons, or3.If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” 19.More recently, Mrima J. in Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR) elaborated on the offence of robbery with violence as follows: -“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -i.The offender is armed with any dangerous or offensive weapon or instrument, orii.The offender is in the company of one or more other person or persons, oriii.The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person” 20.The elements of robbery with violence are disjunctive and not conjunctive. This was explained by the Court of Appeal in Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR) where it held: -“…………the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found (sic!) an offence of robbery with violence…….” (Emphasis mine) 21.Wilson Soi (PW1) testified that on the material night, he was with his wife (PW2) and they were attacked and he was robbed off his mobile phone make ITEL 2160, National Identity Card and a torch. PW1 further testified that he had Kshs 101,000/= in his M-pesa account which the Appellant and his accomplices demanded access to through use of threats. PW1’s testimony was uncontroverted upon cross examination. 22.Ruth Soi (PW2) testified that she was with her husband (PW1) on the material night when they were attacked by 4 assailants. PW2 further testified that they grabbed her while they ransacked her husband (PW1), stole from him before ransacking her. PW2’s testimony was uncontroverted upon cross examination. 23.As to the identity of the Appellant and his accomplices, the victim (PW1) and Ruth Soi (PW2) testified that they saw the Appellant and his accomplice due to the presence of street lighting. When the victim was cross examined, he testified that one had a scar on the face and the other one was bald. He further reiterated his testimony that he saw all their faces. 24.No. 90923 PC Patrick Nyaoke (PW3) who was the arresting officer testified that he responded to a call from the victim that the victim had spotted the Appellant. PW3 further testified that they were able to arrest the Appellant and upon interrogating him, the Appellant admitted to having robbed PW1. PW3’s testimony on the arrest of the Appellant was uncontroverted upon cross examination. 25.No. 233917 PC Franklin Okwora (PW4) testified that his investigations revealed that the Appellant’s mobile phone number had received Kshs 98, 840/= from the victim’s number. He produced M-pesa statements as P. Exh 3 and 4 respectively. I have looked at the M-pesa statements and I have confirmed that Kshs 98,840/= was transferred from the victim’s mobile phone number to the Appellant’s mobile phone number on the material night. 26.The evidence above indicated that the Appellant was placed at the scene of the crime by PW1 and PW2 and the Appellant and his accomplices were positively identified by the victim and this led to his arrest. To also buttress this fact, the Appellant was linked to the robbery through two M-pesa transactions where a total amount of Kshs 98,840/= was transferred from the victim’s M-pesa account to his (Appellant) M-pesa account. To this end, I am satisfied that goods/money capable of being stolen had been stolen by the Appellant and they were stolen by more than one person. 27.As to the use of threats or force or causing harm, the victim (PW1) and PW2 both testified that the Appellant threatened to stab and kill the victim if he did not give up his M-pesa pin. The victim (PW1) further testified that he was grabbed on his neck and got injured. Geoffrey Kirui (PW5) testified that he examined the victim and found that he had bruises on his neck, soft tissue injury on his forehead and upper limbs and chest pain. PW5’ s testimony on the nature of injuries suffered by the victim remained uncontroverted upon cross examination. It is my finding therefore that personal violence was occasioned to the victim in the midst of the robbery. Further, it is also my finding that the Appellant used threatened the victim with death to secure his goal. 28.Flowing from the above, I am satisfied that the Prosecution sufficiently proved the elements of the offence of robbery with violence as contained in section 296 (2) of the Penal Code. 29.The Appellant was also charged with the conveying suspected stolen property. Section 323 of the Penal Code states as follows: -Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour. 30.No. 90923 PC Patrick Nyaoke (PW3) testified that when they arrested the Appellant, he led them to the 2nd Accused (Anos Kimutai Cherui) where they found a maroon bag which had 12 mobile phones. PW3 further testified that the Appellant claimed that he was a mobile phone dealer but when he was challenged to produce his license or indicate his place of work, he failed to do so. No. 233917 PC Franklin Okwora (PW4) testified that they asked the Appellant about the mobile phones but he could not explain. PW4 further testified that they also found new clothes which they suspected to have been bought from the proceeds of what they had stolen from PW1. PW4 produced the maroon bad, mobile phones, pair of boots and assorted clothing as P. Exh 5, 6 (a to l), 7, 8 and 9 respectively. PW3 and PW4’s testimony on the source and recovery of the mobile phones remained uncontroverted upon cross examination. 31.Flowing from the above, I am satisfied that the Appellant was not able to explain how he came into possession of the mobile phones. It is my finding that it was reasonable to suspect that they could have been stolen property. I am thus satisfied that the Prosecution sufficiently proved the elements of the offence of conveying suspected stolen property contrary to section 323 (2) of the Penal Code. II. Whether the Defence casts doubt on the prosecution case. 32.I have already set out the defence of the Appellant earlier in this Judgment. I have considered the defence carefully and I have noted that the Appellant acknowledged that he received money in his M-pesa account but not from the victim but from Marlon Ngetich. The Appellant also denied knowing the victim and that he only met him in court. After evaluating this evidence, I find it to be false as it went against the documentary evidence presented by the Prosecution which showed that the Appellant transferred money from the victim’s M-pesa account to his. Further, the Prosecution had an eye witness who placed the Appellant at the scene of the crime on the material night. 33.After considering the Appellant’s victim as a whole, it is my finding that his defence was shallow, weak and did not shake the Prosecution’s case at all which I have already found proven. III. Whether the sentence was harsh and excessive 34.Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. 35.The penal section for the offence of robbery with violence is found in Section 296 (2) of the Penal Code which provides: -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. 36.Having considered the circumstances of this case, it is my view that the 20-year prison sentence was reasonable and just. I have no reason to interfere with the trial court’s sentence. 37.Regarding the 1-year sentence for the offence of conveying stolen property, it is my finding that the 1-year sentence was sufficient and reasonable for a misdemeanour. I have no reason to interfere with the trial court’s sentence. 38.In the end, the Appeal has no merit and is dismissed. JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 23RD DAY OF JUNE, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgement delivered in the presence of:Siele/Susan (Court Assistants)Ms Koech for the State (Respondent)Appellant:Absent