[2023] KEHC 26535 (KLR)

Hamisi & 2 others v Republic (Criminal Appeal 42 of 2019) [2023] KEHC 26535 (KLR) (Crim) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26535 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 42 of 2019

LN Mutende, J

December 14, 2023

Between

Marjan Juma Hamisi

1st Appellant

Salim Akunava Masisi

2nd Appellant

William Onyore George

3rd Appellant

and

Republic

Respondent

(Being an Appeal arising from the original conviction and sentence in Criminal Case No. 4593 of 2014 at the Chief Magistrate’s Court Kibera, by Hon. Juma – SPM on 6th November, 2018)

Judgment

1. Marjan Juma Hamisi (1st Appellant), Salim Kunava Masisi (2nd Appellant) and William Onyore George (3rd Appellant) were charged with ten (10) counts of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code.1. On count I, particulars of the offence were that on the night of 7th day of October, 2014 along Argwings Kodhek Road Kilimani in Nairobi county, jointly with others not before court, while armed with dangerous weapons namely, toy pistols robbed Mary Njeri Kamau of her BVR Card, a Mobile Phone make Techno and Cash Ksh 13,150 all valued at Ksh 19,650 and at the time of such robbery used actual violence to the said Mary Njeri Kamau.In the alternative, the 1st appellant faced the charge of being in possession of imitation of a firearm contrary to Section 34(1) of the Firearm Act. Particulars being that on the night of 7th day of October, 2014 at Makina Kibera in Nairobi within Nairobi county he was found in possession of imitation of a firearm namely Toy Pistol.2. On count ii, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely, toy pistols, robbed Jorum Wamwago Ndegwa of a mobile phone make Techno and cash Ksh 500 all valued at Ksh. 4,400 and at the time of the robbery threatened to use actual violence to the said Jorum Mamwagu Ndegwa.3. On count iii, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely Toy Pistols robbed Elisha Aziangi Mwangu of mobile phone make Tecno T6 valued at Kshs. 3,500/- and at the time of the robbery threatened to use actual violence to the said Elsha Aziangi Mwangu.4. On count iv, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely Toy Pistols robbed Charles Maina Kuria of a mobile phone make Nokia 2330 and a wallet all valued at Ksh. 4,700/- and at the time of robbery threatened to use actual violence to the said Charles Maina Kuria.In the alternative, Marjan Juma Hamisi, faced a charge of Handling stolen property Contrary to Section 322(1) as read with Section 322 (2) of the Penal Code. Particulars of the offence being that on the night of 7th day of October, 2014 at Kibera Makina in Nairobi within Nairobi county, otherwise than in the course of stealing he dishonestly he retained a mobile phone make Nokia 2330 having reasons to believe it to be stolen property5On count v, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely Toy Pistols robbed Paul Sharon Oyumbe of a mobile phone make Samsung valued at Ksh. 24,599/- and at the time of the robbery threatened to use actual violence to the said Paul Sharon. Oyumbe6On count vi, particulars of the offence being that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely, Toy Pistols robbed Elizabeth Sarah Mwasya of a mobile phone make Startimes Move M35 valued at Ksh. 6,000/- Identity Card, Equity Bank ATM Card, Cooperative Bank ATM Card and a purse all valued at Kshs. 9,300 and at the time of robbery threatened to use actual violence to the said Elizabeth Sarah Mwasya.In the alternative, Marjan Juma Hamisi faced the charge of handling stolen property contrary to Section 322(1) as read with Section 322(2) of the Penal Code, particulars of the offence being that on the night of 7th day of October, 2014 at Kibera Makina in Nairobi within Nairobi county, otherwise than in the course of stealing, he dishonestly retained a mobile phone make Startimes Move M35 having reasons to believe it to be stolen property7On count vii, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely,Toy Pistols robbed Eddy Onditi Onyango of mobile phone make Techno S3 Laptop make Dell hard disc drive and cash Ksh. 7,000/= all valued at ksh. 82,400/- and the time of the robbery threatened to use actual violence to the said Eddy Onditi Onyango.In the alternative, Marjan Juma Hamisi, faced a charge of Handling stolen property contrary to section 322(1) of the Penal Code as read with Section 322 (2) of the Penal Code. Particulars of the offence being that on the night of 7th day of October, 2014 at Kibera Makina in Nairobi within Nairobi county, otherwise than in the course of stealing, he dishonestly retained a Laptop make Dell having reasons to believe it to be stolen property.8On count viii, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely Toy Pistols robbed Paul Kibue Mbugua of a mobile phone make Samsung Windows B3380 a Wallet, Voters Card, Equity Bank ATM Card, National Identity Card and Ksh. 3,000/- all valued at Ksh. 22,000/- and at the time of the robbery threatened to use actual violence to the said Paul Kibue Mbugua9On count ix, particulars of the offence being that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely Toy Pistols robbed Sheila Achieng Ogola of a mobile phone make Nokia Asha 311, Scientific calculator, a purse, stapler, rubber, ID card, NHIF card, NSSF card, Barclays Bank ATM Card, Equity Bank ATM card, Royal Media Services Staff Badge, Moi University School Badge, driving licence and a handbag all valued at Ksh. 18,240/- and at the time of the robbery threatened to use actual violence to the said Sheila Achieng Ogola.In the alternative, Marjan Juma Hamisi, faced a charge of Handling stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code. Particulars of the offence being that on the night of 7th day of October, 2014 at Kibera Makina in Lang’ata within Nairobi county, otherwise than in the course of stealing, he dishonestly retained a scientific calculator, a purse, a stapler and a rubber having reasons to believe them to be stolen property.10On count x, particulars of the offence were that on the night of 7th day of October, 2014, along Argwings Kodhek Road Kilimani in Nairobi within Nairobi county, jointly with others not before court while armed with dangerous weapons namely, Toy Pistols, robbed Beth Nyambura Nyaga of a handbag, Utalii College Identity Card C79/38872/2011, women leather sandals and cash Ksh. 200/- all valued at Ksh. 2,760/- and at the time of robbery threatened to use actual violence to the said Beth Nyambura Nyaga.In the Alternative, Marjan Juma Hamisi, faced a charge of Handling stolen property contrary to section 322(1) as read with Section 322(2) of the Penal Code. Particulars of the offence being that on the night of 7th day of October, 2014 at Kibera Makina in Langata Nairobi county, otherwise than in the course of stealing, he dishonestly retained Utalii College Identity Card No. C79/38872/2011 and women leather sandals having reasons to believe them to be stolen .property.

2. Having been taken through full trial they were convicted on counts 1,2,3,4,5,7,8 and 10 and sentenced to serve twenty (20) years imprisonment on each count, sentences that were to run concurrently. Pursuant to the provisions of Section 333(2) of the Criminal Procedure Code, time spent in custody was taken into consideration. The sentence was to run with effect from the 9th day of October, 2015.

3. Aggrieved by the decision of the court, the Appellants proffered this appeal against both the conviction and sentence on the grounds that can be condensed thus: the case was not proved to the required standard; identification of the Appellants was riddled by inconsistencies as prevailing circumstances were not favourable hence reliance thereon was not safe; the doctrine of recent possession of stolen goods was not established; the defence put up was disregarded and the case was not proved to the required standard.

4. Evidence presented by the Prosecution were through fifteen (15) witnesses. PW1 Joram Mwangi Ndegwa, the driver of the Motor Vehicle Registration Number KBK 364J Nissan Bus testified to have been on duty on 7th October, 2014. At about 8. 00 pm the Motor Vehicle picked up passengers at DOD stage. Reaching Elgeyo Marakwet area he heard a person uttering unprintable words. On checking behind, he was slapped and ordered to drive on, and, he heard a person ordering passengers to give out all their possessions. He was ordered to drive on and follow a road of the choice of the assailants and he was slapped as he drove on. Upon reaching Posta Stage along Ngong Road, he was ordered to drive towards Kibera. He drove until a dead end where he was ordered to turn off the engine of the vehicle and switch off lights. The assailants slapped him and took his phone make Techno from his breast pocket, demanded for money and took Ksh 500/- that he had.

5. After plundering people the assailants alighted and one passenger alerted people that they were not armed. The allegation prompted people to chase after them. In the premises, they encountered police officers on patrol who took over the matter.

6. PW2 Mary Njeri Kamau who was the conductor of the Bus on the fateful date saw a person who was sitting next to the door stand while the bus was in motion. He insulted people calling them dogs and ordered them to lie down. Her half coat was searched thoroughly by the individual who took away all the money that she had collected. The person told her to relax, an act that made her observe his face. Another individual went to where she stood at the back of the vehicle and sought to know why she talked badly to him as she looked at his face. He proceeded to remove a phone and money Ksh. 900/- from her breast pocket, slapped and kicked her on the chest at the thoracic basket (ribs area) and ordered her to sit down. She witnessed as passengers were being ordered to give money and mobile phones as the driver complied with the order to drive up to the place where the motor-vehicle eventually stopped. There were Police Officers within the vicinity therefore the attackers fled. The matter was reported to the Police Station, Kilimani. Those who were injured who included PW1 and PW2 were taken to hospital for treatment subsequently she identified the individuals on a parade.

7. PW3 Eddie Oudeti Onyango, a passenger aboard the bus sat on the front seat. He saw a passenger who sat behind the driver hold the driver whom he gave instructions and when the driver hesitated he hit him. He witnessed as passengers who sat behind were ordered to sit down. He was robbed off a bag, Techno mobile phone, 3 Discs, one Laptop make Dell 3416 and cash Ksh. 7000/-. According to him the assailants were six.

8. PW4 No. 220574 Sgt. George Oduongi was on Patrol duties along Joseph Kangethe Road. Acting on information received, he rushed to the closed road at Toy Primary School. Alongside his colleagues, he found passengers. They got information that the attackers had escaped on foot through the corridor. They followed and reached a makeshift house in a compound. They peeped and saw the 1st Appellant browsing on a Laptop. At his feet was a green carrier bag. Upon searching the 1st Appellant he had an imitation of a pistol. From the green bag they recovered four (4) mobile phones, Techno, two (2) Nokia and Ideos; a purple purse, green shinny purse; maasai sandals; green paperbag with money in different denomination amounting to Ksh. 3385/- small note book, sim pocket safaricom simcard holder; a set of keys; and, three combs.

9. PW5 No. 416640 Senior Sergeant Mohamed Hassan Bakhet testified to have encountered the bus at corridor with an engine running, while on patrol. A passenger from the bus informed them about the robbery. They followed the directions stated to have been used by the attackers which led them to Makina area. They reached a dead end, climbed over a wall and inside the compound were some three men browsing on a laptop. In particular he identified the 1st Appellant to have been in the act of searching the engine of the laptop. He confirmed in material particulars evidence of PW4 in respect of the toy pistol found in possession of the 1st Appellant and the recovery of other items.

10. Further, that the 1st Appellant led them to the arrest of the 2nd and 3rd Appellants who lived in the same vicinity.

11. PW 6 Paul Kibue Mbugua who was aboard the bus was robbed off a mobile phone, ATM Card, Identity Card and Voters Card.

12. PW7 Veronica Makando Odour was at her stall at Makina Kibera at 10. 00 pm. Prior to closing down her business she saw a person she identified as the 1st Appellant who went to her stall carrying a carrier bag. He entered the plot, and shortly thereafter the police arrived and entered the same plot. She testified to have heard some commotion inside her house and when she entered she found the 1st Appellant with her two (2) sons Dickson and Felix who had been in the house when the 1st Appellant went there. She saw the 1st Appellant with her two (2) young sons handling the Laptop. She was arrested alongside the three since the house was hers. Exhibits were recovered. That the 2nd and 3rd Appellants were arrested later on the same night near Kenol Office at Junction. They joined them in the motor-vehicle. They were subsequently taken to the Kilimani Police Station. She alluded to having known the 1st Appellant for two (2) months prior to the incident, but, denied having known the 2nd and 3rd Appellants.

13. PW8, Felix Mudiale stated that on 7th October, 2014 he was a Pupil at Mashimoni Primary School, and while at home his neighbour and friend Dickson visited him. As they watched Television at about 10. 00 pm, the 1st Appellant entered the house carrying a Laptop and as they were in the process of opening it Police Officers entered the house and arrested them. The 1st Appellant on being searched, possessed a toy pistol. The 1st Appellant was interrogated and he offered to lead the police to arrest his accomplices which he did. All of them were arrested, but, two days later he was released alongside Dickson and his mother. He alluded to having known the 1st Appellant since his childhood as they were in the same football team. On cross examination he confirmed having seen the police recover the toy pistol, Laptop and some mobile phones from the 1st Appellant.

14. PW9 Dickson Muhari Kibiso alluded to having visited PW8 where he stayed until 9. 00 pm – 10. 00 pm when the 1st Appellant arrived with a carrier bag. He removed the Laptop from the bag and Police Officers entered the house. They searched them. The 1st Appellant had a toy pistol and mobile phones. He testified that the police also took away his mobile phone. That PW8’s mother who was selling items outside entered the house and they were all arrested. That he used to play football in the same football team, Juventus with the 1st Appellant but did not know the 2nd and 3rd Appellants.

15. PW10, Charles Maina Kimani, a passenger on the bus was ordered by the person who sat behind the driver but in front of him to surrender a firearm. He was robbed off a Nokia Phone 2300 and cash Ksh. 4500/-. After items were recovered he went to identify his phone at Kilimani Station. He alluded to having seen the assailants on the material day and identified them in court, though he did not identify them at the Police Station.

16. PW11, No. CIP 233441 Bernard Kenyatta conducted the identification parade in respect of the suspects where the 1st Appellant was identified by Mary Njeri (PW2) Paul Sharon Oyombe, Elizabeth Sara Mwasya, who did not testify and Elisha Ashiangu Mwangu (PW 12) Upon being satisfied with the manner in which the parade was conducted he signed the parade form.

17. The witness conducted a parade in respect of the 2nd Appellant who was only identified by PW2 and the Appellant duly signed the parade form.

18. With regard to the 3rd Appellant, only Elizabeth Sarah Mwasya identified him per the parade identification form, but, she did not testify.

19. PW12, Elisha Ashiangu Mwangu was aboard the ill-fated bus, seated at the back. He said a person he believed was a conductor wearing a green suit stood up. He hurled insults and pulled out a gun and ordered people to shut up. He identified the individual as the 3rd Appellant. That he was hit by the 1st Appellant who sat with him. They were ordered to surrender valuables. He lost a mobile phone, Techno T611. Later he took part in the identification parade and identified all the appellants.

20. PW13, Beth Nyambura Nyaga lost a purse, sandals, book and School Identity Card. However, she was not able to identify the individuals per what she stated in examination in chief.

21. PW 14, Paul Shawn Oyumbe was busy on his phone when the bus was diverted towards Adams Arcade. He heard people being ordered to lie down. The person who sat next to him grabbed his phone and when he tried to resist was hit on the eye. He lost his cellphone make Samsung. His documents including a birth Certificate and Baptism Card that he had were all taken away. He witnessed as the lady conductor was attacked and the driver assaulted. The bus moved and stopped at Toy Primary School. The assailants that he estimated as nine in number alighted. He alighted to pursue the individual who sat next to him as he had taken keys to his house and gate. When the police went to the scene, he followed them to Makina but returned to Toy Primary School only to find the bus having left. He explained his predicament to night guards who raised some 200/- and gave him for fare.

22. Upon reaching home, he received a call from the police who asked him to go to Kawangware go down. He found the police in a bedroom but did not identify anyone. He was advised to go to Kilimani Police Station which he did and was able to identify the 1st Appellant.

23. PW15 No. 93671 P.C Stephano Lesas took over investigations after six (6) people had been arrested, including the Appellant and three others who were treated as prosecution witnesses. It was his testimony that the 1st Appellant was found in possession of a Laptop that belonged to PW3. Also recovered was a toy pistol and he led to the arrest of his co-accused, the 2nd and 3rd Appellants. Identification parades were conducted that resulted into the Appellants being identified and subsequently charged.

24. Upon being placed on their defence, the 1st Appellant who gave sworn evidence testified that on the material date he left his place of business at 8. 00pm and went to Makina Market. After staying for about 10 minutes Police Officers arrived and the son of the owner of the house went to call his parent. The police conducted a search and handcuffed them. A Land Rover arrived and carried them to Kilimani Police Station. He denied knowing his co-accused.

25. The 2nd Appellant stated that he was at home watching Television which was not clear. He went outside to adjust the aerial only to see some four (4) people approaching. They turned out to be two (2) Police Officers and the then complainant. They sought to search his house which they did and recovered his mobile phone and three identity cards that belonged to him and his parents. He was ordered to follow them and he complied. He was made to enter a Land Rover, was taken to the DC’s Office where he met the 1st and 3rd Appellant. That he saw Mary Njeri amongst other complainants at the garage in Kawangware but none of the complainants identified him. Subsequently he was taken to Kilimani Police Station where Mary Njeri now identified him after failing to identify him at Kawangware.

26. The 3rd Appellant stated that he encountered the police after escorting his cousin who had visited. Other people were called and they were all taken to Kawangware Bus garage where they found robbery victims. They were later taken to Kilimani Police Station and subsequently arraigned in court for an offence that he did not commit.

27. The trial court considered evidence tendered and was satisfied that identification of the three (3) appellants at the scene was positive. That the 1st Appellant was found in possession of multiple items that were robbed from the complainant while the 2nd and 3rd Appellants also had stolen items, hence the conviction.

28. I have considered arguments raised by the Appellants and the State/Respondent. This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of seeing and hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in Okeno -vs- Republic[1972] EA 32 as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.

29. Ingredients of the offence of robbery with violence are provided in Section 296 (2) of the Penal Code which enacts that: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.

30. To prove the charge to the required standard of proof beyond reasonable doubt, there must have been evidence of what was stolen; the number of assailants which must have been more than one (1) person; and the fact of the assailant having been armed with a dangerous weapon; and; some violence which should have been used before or after the act that constituted the offence in question. (See Johana Ndirangu vs. Pipeline Cr. Appeal No. 116 of 1995. )

31. In the case of Dima Denge vs. Republic Criminal Appeal No. 300 of 2007 it was stated that:“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 find an offence of robbery with violence.”

32. Prosecution witnesses who testified tendered undisputed evidence of the bus they were travelling in having been hijacked by people who assaulted passengers and took away their belongings. Most of them were not recovered. The individuals were more than one. What is contested by the Appellants is the question of identification. The argument advanced is that the incident happened at night. The victims were in a state of shock and due to fear they were not in a position to identify the assailants.

33. A trial court is required to be cautious while determining the question of visual identification. In the case of Wamunga vs. Republic (1989) KLR 424, the court stated that:“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

34. An identification parade was conducted where PW2 and two (2) others identified the 1st Appellant. Other than being identified on parade, evidence adduced established that Police Officers who went to rescue the victims pursued the 1st Appellant who jumped over the perimeter wall and went to the house of PW7 carrying a carrier bag. The bag contained items among them a laptop, some phones and a toy pistol. PW8 and PW9 who were inside the house when the 1st Appellant entered confirmed the fact of the items having been in his possession at the time of arrest.

35. Elements of the doctrine of recent possession were explained in the case of Eric Otieno Arumvs. Republic KSM CA Criminal Appeal No. 85 of 2005 (2006) eKLR by the Court of Appeal which held thus:“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant; and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to another.”

36. Evidence on record proved that the Laptop that PW3 lost on the fateful night was found in possession of the 1st Appellant. The Laptop was found soon after it was stolen. This called upon the 1st Appellant to tender a plausible explanation as to how he come to possess the same. Although the 1st Appellant admitted having been found at PW7’s house with her sons, he denied having been in possession of the items that were recovered. In the case ofBogere Moses & Another vs Uganda Cr. Appeal No. 1 of 1997(1998) UGSC 22, the Supreme Court of Uganda held that:“It ought to be realized that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raises a very strong presumption of participation in the stealing, so that if there is no innocent explanation of the possession, the evidence is even stronger and more dependable than eye witness evidence of identification in a nocturnal event. This is especially so because invariably the former is independently verifiable, while the latter solely depends on the credibility of the eye witness.”

37. PW2 positively identified the 1st Appellant on the parade. Similarly three (3) other witnesses identified him. This evidence corroborated evidence of recent possession that was unexplainable such that the only reasonable inference that could be drawn was that he was the person armed with a toy pistol that he was found with which he used to threaten the victims. Evidence against the 1st Appellant was watertight.

38. Regarding the 2nd and 3rd Appellants, it was stated that the 1st Appellant led the police to their arrest and upon being found in their respective houses a search was conducted whereby the 2nd Appellant had two (2) phones, a Techno and Nokia N25 which were marked for identification as MF1 25 and 26 respectively. The 3rd Appellant was stated to have been found in possession of a mobile phone, Nokia brown in colour – marked as MF1 27. No complainants were called to identify the stated phones and claim ownership.

39. According to PW2 she alluded to the 2nd robber as having been dressed in a white jersey. This person, in her evidence in chief was the 2nd Appellant. However on cross examination she denied having seen the person’s face well. She admitted having seen the 2nd Appellant at a garage at Kawangware on the fateful night prior to identifying him on the identification parade at Kilimani Police Station.

40. With regard to PW 12 he did not identify the robbers on the identification parade but alleged that the 2nd Appellant sat next to him and ordered him to hand over the bag that he had therefore he could identify him.

41. In the case of R vs Turnbull and others(1976) All ER 59 the court stated that:“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

42. It was stated by witnesses that lights of the motor vehicle were switched off during the incident. It may have been possible or not for PW3 to identify the 2nd appellant considering that it was alleged he was aided by street lights. The intensity of the street right was not stated.

43. An accused person benefits from the nature of standard of proof required in a criminal case. The prosecution is required to prove the case against the accused person beyond reasonable doubt. The question of certainty should have been answered with the kind of evidence that was adduced against the 2nd and 3rd Appellants. It was weak and insufficient such that the trial court should not have retuned a verdict of guilty against them.

44. From the foregoing, I confirm the conviction against the 1st Appellant and not the 2nd and 3rd Appellants.

45. On the question of sentence meted out, The 1st Appellant argues that time spent in custody was not considered. Section 333(2) of the CPC provides thus:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

46. Section 296 (2) of the Penal Codeprovides thus: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

47. The sentence provided for the offence in issue is death penalty. However, in the year 2018 courts were of the view that the decision in Francis Muruatetu & Another vs Republic (2017) eKLR where the Supreme Court declared death penalty unconstitutional was applicable to all cases until the year 2021 when the Supreme Court clarified that its decision in 2017 in the Muratetu case was only applicable to sentences under Section 203 as read with Section 204 of the Penal Code. (See Muruatetu & Another vs Republic & Others (2021) eKLR

48. This particular case was decided in 2018. And, the trial court clearly stated as follows:“The sentence to run concurrently and to take into account the years each of the 3 accused has been in remand custody from 9th October, 2015 to date”

49. It is apparent that Section 333(2) of the CPC was complied with.

50. The upshot of the above is that the appeal by the 1st Appellant is dismissed in its entirety. However, the appeal by the 2nd and 3rd Appellants succeeds and is allowed. The two Appellants will be released forth with unless otherwise lawfully held.

51. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYTHROUGH MICROSOFT TEAMS AT NAIROBI,THIS 14THDAY OF DECEMBER, 2023L. N. MUTENDEJUDGE