https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9549

Kaleli v Republic (Criminal Appeal E024 of 2025) [2026] KEHC 9549 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9549 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E024 of 2025 NIO Adagi, J June 18, 2026 Between Issac Moses Kaleli Appellant and Republic Respondent (Being an appeal of the conviction and sentence delivered on 27th January 2025 in Chief Magistrate's Court at Machakos Criminal Case No. 50 of 2016) Judgment 1.The Appellant Isaac Moses Kaleli together with two others and others not before court were charged with 3 counts the offence of Robbery with violence contrary to Section 296(2) of the Penal Code and 2 counts of having suspected stolen property contrary to section 323 of the Penal Code. The Appellant and his co-accused persons pleaded not guilty to all the charges and the matter was set down for hearing. 2.The prosecution called eight (8) witnesses in proving its case. The Appellant’s two co-accused persons were acquitted under Section 215 of the CPC for lack of sufficient evidence on all the five counts to convict them. 3.The Appellant was on 18th February 2025 convicted of the offence of robbery with violence contrary section 296(2) of the Penal Code and was sentenced to 30 years imprisonment. 4.Being aggrieved by the decision of the trial court, the Appellant, filed a petition of appeal in this Court on 25th February 2025. Thereafter on 31st December 2025, the Appellant filed amended seven (7) grounds of appeal as follows :-i.That the learned trial magistrate faulted in points of law and facts by taking into account identification of the appellant herein in court by PW I and PW2 without observing that such identification is almost worthless without earlier identification parade and for this single reason, the honourable court be pleased to allow this appeal in its totality by quashing convictions on both counts.ii.That the learned trial magistrate erred in points of law and facts by convicting and sentencing the appellant herein to serve 20 years imprisonment in all two counts of robbery with violence without observing that both PW I and PW2 complainants herein did not describe the appellant herein in their first report to the police and the same was not availed in courtiii.That the learned trial magistrate erred in point of law and facts by convicting and sentencing the appellant herein in both counts without observing that the instant matter was not proved beyond reasonable doubt when the prosecution failed to discharge its onus of proof.iv.That the learned trial magistrate erred in points of law by failing to consider his defence statement yet it was corroborated by DW2 Richard Otieno Omboya.v.That the honourable court is also asked to address on the issue of the learned trial magistrate when it ordered and directed that the sentences to run concurrently.vi.That the trial court below finally erred in the points of law by failing to evaluate the prosecution evidence in a proper manner which led it to reach at an erroneous verdict.vii.That the trial court below erred in the points of law by failing to note that light was not proved as required by law. 5.The Appellant prayed that the same be allowed, the conviction be quashed and the sentence be set aside and that he be set at liberty. 6.The facts of the case according to the prosecution in Count I are that the Appellant and his two co-accused persons on 9th day of January 2016 at about 2.00 A.M at Katelembo Location within Machakos Sub-county within Machakos County jointly with others not before court, being armed with dangerous weapons namely Pistols, Metal rod, Bolt cutter and Pangas robbed Boniface Kyenzi Mwinzi of Television set 32 inch make Samsung, Mobile Phones Alcatel make PINX13, Techno touch screen and Nokia Phone, Home Theatre make Sumsung and small radio, Assorted clothes, shoes and cash of Kshs.25,000/= all valued at Kshs.200,000/= and immediately before the time of such robbery threatened to use actual violence to the said Boniface Kyenzi Mwinzi. 7.The facts of the case according to the prosecution in Count II are that the Appellant and his two co-accused persons on 9th day of January 2016 at about 2.50 A.M at Katelembo Location within Machakos Sub-county within Machakos County jointly with others not before court, being armed with dangerous weapons namely Pistols, Metal rod, Bolt cutter and Pangas robbed James Matolo Mulei of Television set 32 inch flat screed, Laptop make Lenovo High 5, Mobile phone Techno C9, Techno and LG Touch screen, 2ATM Cards of Co-operative Bank, Family Bank and cash of Kshs.56,000/=, Home Theatre make Samsung all valued at Kshs.153,000/= and immediately before the time of such robbery threatened to use actual violence to the said James Matolo Mulei. 8.The facts of the case according to the prosecution in Count III are that the Appellant and his two co-accused persons on 9th day of January 2016 at about 2.00 A.M at Katelembo Location within Machakos Sub-county within Machakos County jointly with others not before court, being armed with dangerous weapons namely Pistols, Metal rod, Bolt cutter and Pangas robbed John Wali Isove of a Laptop HP Compaq, Two smart phones make Nokia Lumia and Huawei Ignition Keys, ATM Cards of Equity Bank and cash Kshs.10,000/= all valued at Kshs.126,000/= and immediately before the time of such robbery threatened to use actual violence to the said John Wali Isove. 9.The facts of the case according to the prosecution in Count IV are that at Manza area in Machakos Sub-county within Machakos County having been detained by No.45xxx Cpl Samwel Ngomo as a result of the exercise of powers conferred by Section 26 of the CPC had in his possession of the following; mobile phones 1- one Red Itel, 2- one Small Nokia Phone, 3- one small Black Nokia, 4- one Small Black Nokia , 5 – one Small Black Tecno, 6- one Small Pink Itel reasonably suspected to have been stolen or unlawfully obtained. 10.The facts of the case according to the prosecution in Count II on 9th day of January 2016 at Miwani area in Machakos Sub-county within Machakos County having been detained by No. 76xxx Cpl Willy Chepkonga as a result of the exercise of powers conferred by Section 26 of the CPC had in his possession of the following; Mobile phones, 1.Tecno S/No. E3N3460763, 2.LG Red in colour, 3.Black Alcatel, 4. Two Nokia phones model 1280 reasonably suspected to have stolen or unlawfully obtained.The appeal was canvassed by way of written submissions. 11.The Appellant submitted that the trial court erred by convicting and sentencing him to serve 25 years imprisonment in two counts without observing that PW1, PW2, PW3 & PW6 respectively did not describe Appellant herein in their first report at the police station when recollection was still fresh before consultation with others. That the Justice of this case demands that, this appeal to be allowed on this single ground of appeal and Appellant herein be released from custody. He argued that the legal question in the present case is, if the first report does not contain any single description of the assailants. What was the basis of the conducting identification parade? He proceeded to submit that the answer on this legal question is found in the trial records where the witnesses stated in court that members of the parade were of different shape, size, colour and stature. Thus, the identification parade was conducted without basis and for this reason it involved members of different features. That the trial court did not take into account the identification parade that was conducted by PW7 CPL James Mose No. xxx288 without observing that parade members did not have similar characteristics. 12.The Appellant also challenges the evidence regarding light and submits that light in the present case was not proved beyond reasonable doubt when PW 1, PW2, PW3 & PW6 failed to state the nature of the alleged light, what sort was its size and its position relating to the suspect. Again that, evidence on record shows that the alleged security lights were switched off as per the evidence of PW2 on page 31, however, PW6 stated that she used security lights to identify the suspects. The Appellant questions how can light that is switched off be used to identify a person if they were ordered to sleep while facing down. as per evidence on record. How did they manage to identify the suspects while their eyes were facing down. 13.Further, the Appellant submits that the judgment of the trial court did not contain the points for determination and the reasons for the decision reached. 14.That the trial magistrate did not address the issues of convicting and sentencing the Appellant herein in both counts. Mainly, on Count I that was represented by PW1 alone without any further collaboration; the issue of darkness was not properly resolved; the issue of first report as all ready discussed herein above and the issue of life expectancy which was also not addressed by the trial court while imposing a 25 years imprisonment who is aged 54 years old. The Appellant prays that this Court be pleased to allow this appeal in its totality. 15.For the Respondent, it was submitted on identification that PW1 testified that he saw the person checking the motor bike very well and referred to him as the Appellant. He also saw him after he was brought to the police station. PW1 was also able to identify the motor bike that was used and was recovered. That PW2 testified that the place has street light on the containers on both sides, the walls also had lights and on the road the street light was also on. The light was sufficient to see them since they came very closely. That PW3 corroborated the evidence of PWI and PW2 on identity. He testified that they had a chase the motor bike never left his sight. At the police station they found a Prado in the station and a police officer who said that he had arrested a man running at express way. PW5 a police officer testified that on the said night he was on patrol along the expressway from Mlolongo side they almost knocked down 2 young men who were crossing the expressway from gateway mall side towards the SGR entrance. They were able to arrest one of them. He testified that the Appellant was one of them who he arrested. 16.The Respondent submitted that identification was by recognition. The witnesses knew the Appellant and were able to place him on the scene and identify him as the perpetrator. Thus, the Appellant was able to be attached to the offence against PW 1 and PW2. 17.In regard to the ingredient of theft, the Respondent submitted that, PW1 testified he was in the company of PW2 at around 9:00-9:30pm awaiting to picked up by their workplace transport heading for nightshift. He saw a bike ride towards them and two men coming towards them. One seemed to have a pistol. They were frisked and they picked one phone from his colleague. He states they stole his phone and wallet. They jumped on the motor bike and left. 18.On use of or threat to use actual violence the Respondent submitted that PW1 testified he saw one of them with a pistol and that las he held on to his pocket while they were being frisked he was hit on the head and on the face and he started bleeding. He was treated at Mlolongo health centre and referred to PExt. 1. 19.PW2 saw PW 1 being hit on the face. He testified that the gun was pointed to his face. PW2 states that ..the 2 men came slowly towards us...one man pulled out a black object that looked like a pistol....and asked for my phone, he also asked PWI who was not willing and he was hit ok the face... " (Proceedings page 16) 20.PW4 the clinical officer corroborates evidence of PW 1 and PW2. While he referred to the P3 Form, PExt.4, he states that upon examination he saw swelling on the face along the left eye and tenderness, the injuries were approximately 15 hours. His diagnosis was that PW 1 suffered soft tissue injuries secondary to assault and produced the P3 Form as PExt.4. Thus, it was proved that the complainant PW1 was assaulted during the incident.(this court does not find the Respondent’s submissions on identification, theft and use of or threat to use actual violence not to be compatible with the facts of this case) 21.Additionally, when the Appellant was placed on his defence under Section 211 of the Criminal Procedure Code , the Appellant tendered sworn evidence and called one witness. He stated that he was a casual worker and he was at work and denied robbing the appellant. His witness though foreman and produced the work log of the said date, they failed to place the Appellant at work during time the robbery is said to have happened. Further they indicate that the Appellant left work at 8:30p.m and the robbery happened at 9:00p.m. This is ample time to leave work and do your own dealings. Further there was no witness to account for the Appellant after he left work. They also raise this as a defence of alibi. This should have been raised earlier in the trial and the prosecution given a chance to rebut this evidence. Further none of this came up during cross-examination for the prosecution witnesses. The time he stated he was not present at the scene. This defence was an afterthought and is not strong enough to rebut the prosecution evidence as against the Appellant. 22.On sentence, the Respondent submitted that The Appellant was sentenced to 20 years imprisonment for each count to run concurrently. He was given a chance to mitigate and the court called for a social registry report. The court further considered a social report before sentencing the Appellant. The prosecution informed the court that the Appellant was a first offender. 23.Section 296 (2) provides 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, strikes or uses any other personal violence to any person he shall be sentenced to death. 24.In the instant case, the complainant PW 1 was injured and also robbed of items of PW 1 and PW2 by the Appellant. He committed the act using actual force that injured the complainants. The learned trial magistrate evaluated the evidence on the prosecution and was proper in finding that the prosecution proved its case beyond reasonable doubt. The conviction was safe and proper. As regarding the sentence imposed, the lawful sentence under the law for offence of robbery with violence is death sentence. The trial court however does not indicate as to why it departed from the prescribed sentence by law in an offence of robbery with violence. Be that as it may, looking at the circumstances of the case, we submit that the 20 years sentence imposed by the trial court is a sufficient and deterrent sentence and we urge this Honourable court to confirm the same. 25.The Respondent submits that this appeal lacks merit and should therefore be dismissed in its entirety. Analysis and Determination 26.Section 296 of the Penal Code proves 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. 27.The elements of the offence of robbery with violence are 3 and were set out by the Court of Appeal in the case of Oluoch v Republic [1985] KLR as follows:“Robbery with violence is committed in any of the following circumstances:a)The offender is armed with any dangerous and offensive weapon or instrument; orb)The offender is in company with one or more person or persons; orc)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 ………” 28.The use of the word “or” at the end of each ingredient shows that they are to be read disjunctively and not conjunctively. As such, any one of the ingredients is adequate to establish the offence of robbery with violence. 29.The Complainant stated that he was accosted by 3 people one of whom was the Appellant. They robbed him of Kshs. 500/= and a phone and then beat him up with a wooden stick and pangas. PW2, the clinical officer at King Fahd Hospital who attended to the Complainant on the material date stated that his shirt was torn and that he had bruises on the upper right arm, shoulder and left elbow joint. He produced the P3 form and medical treatment book. Additionally, PW3, the Complainant’s employer who showed the police where the Appellant lives, testified that he saw the Complainant with scratches on the arm and face. This evidence by the prosecution was not shaken by the Appellant in cross examination. 30.The Court further notes that when the Court gave the Appellant an opportunity to defend himself and to call witnesses pursuant to Section 211 of the Criminal Procedure Code. The Appellant however opted to say nothing. He further chose not to call any witnesses and await the court’s judgment. 31.From the evidence on record, the Court is satisfied that all 3 ingredients of the offence of robbery with violence were established. I therefore find no basis for interfering with the decision of the trial Magistrate to convict the Appellant. 32.As regards sentence, Section 296(2) of the Penal Code provides that a person convicted of the offence of robbery with violence shall be sentenced to death. During sentencing, the Appellant opted not to say anything in mitigation. The trial Magistrate while noting that the Appellant was a first offender observed that he was not remorseful. Although the trial Magistrate stated that the amount stolen was only Kshs. 500/= he noted that his hands were tied as the death sentence was the only penalty available in law. He thus proceeded to so sentence the Appellant. 33.The Appellant has submitted that the sentence of death is unconstitutional and urged the Court to set it aside. The Respondent contended that the sentence imposed was within the scope of the law and ought not be interfered with. Reliance was placed on the case of Bernard Kimani Gacheru v Republic [2002] eKLR. 34.The death penalty is still available in our statute books for the offences of murder and robbery with violence. The emerging jurisprudence from our superior courts however is that courts should exercise discretion in sentencing. In this regard, I associate with the sentiments expressed by Ngugi, J. (as he then was), in the case of James Kariuki Wagana v Republic [2018] eKLR. The learned Judge stated: 35.The law of the land as it stands today, therefore, is that the maximum penalty for both murder and robbery with violence is the death penalty but the Court has discretion to impose any other penalty that it deems fit and just in the circumstances. 36.In light of this, I will, therefore, proceed to determine the appropriate sentence. First, it is true that all the elements for the offence of robbery with violence were proved. However, there are no truly aggravating circumstances which would lift this case to the scales of the death penalty. Death sentence should be reserved for the highest and most heinous levels of robbery with violence or murder. That is not the case here. While force was used, one cannot say here that the Appellant used excessive force; and neither did he unnecessarily injure the Complainant during the robbery. He was not armed with any offensive weapon. 37.I also concur with Gikonyo, J. who in the case of Paul Njoroge Ndungu v Republic [2021] eKLR, stated:39.In the case before me, all the ingredients of robbery with violence have been met. The appellant, who was in the company of others, robbed the complainants, and in the course of the robbery, the appellant not only used force, but was armed with a dangerous weapon with which he used to beat or hit the complainants causing bodily injuries. The PW1 assessed the degree of injury as harm.40.The level of violence unleashed on the complainants is sufficiently serious to warrant long term imprisonment. The violence did not cause death or grievous harm.41.In the circumstances, I will reduce the death penalty to a term of imprisonment for 35 years from the date of first arraignment in court that is on 4/4/2007 in compliance with section 333(2) of the CPC. At the time the offence was not bailable. 38.As indicated herein, the Court is satisfied that the evidence adduced by the prosecution established the offence of robbery with violence. All the ingredients of the offence were established. The Court however notes that PW2 classified the injuries sustained by the Complainant in the violence meted on him in the course of the robbery as harm. The violence did not cause him death or grievous harm to warrant the death sentence. 39.In light of the foregoing, while I uphold the conviction, I set aside the death sentence and substitute therefor the sentence to a term of imprisonment for 15 years which I deem fit and just in the circumstances. In compliance with the provisions of Section 333(2) of the Criminal Procedure Code, the sentence shall be reduced by the period the Appellant was held in custody pending trial from 26.1.22 when he was arrested to 3.3.22 when he was admitted to bond.Right of Appeal 14 days.It is so ordered. The file is closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18TH FEBRUARY 2025. NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18TH JUNE 2026In the presence of:...................................... for ApplicantMs. Agatha......... for RespondentMillygrace..................... Court Assistant