https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9249

Mwangi v Republic (Criminal Appeal E026 of 2024) [2026] KEHC 9249 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9249 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E026 of 2024 DKN Magare, J June 25, 2026 Between Jackson Maina Mwangi Appellant and Republic Respondent Judgment 1.This is an appeal from the conviction and sentence meted out by the Hon. P.N. Maina (Chief Magistrate) in Murang’a CMCCRC No. E121 of 2023 on 14.3.2024. 2.The Appellant was charged jointly with Francis Thiongo Mwangi with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0230hrs at Mukuyu Market in Murang’a East sub county of Murang’a County, the duo, while armed with a dangerous weapon namely knife robbed Risper Nkirote Mugambi of mobile phone make Neon Ray valued at Ksh. 4,500/= and immediately before the time of such robbery used actual violence to the said Risper Nkirote Mugambi. 3.The Appellant was also charged in Count II with attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0300hrs along Kahuro-Mukuyu road in Maragi location of Murang’a County, the duo, while armed with a dangerous weapon namely knife attempted to rob Godfrey Kinoti Gitonga and at the time of such attempt used actual violence to the said Godfrey Kinoti Gitonga. 4.There was also count III where the Appellant was charged with attempted robbery with violence contrary to section 297(2) of the Penal Code. The particulars of the offence were that on 11.2.2023, at 0300hrs along Kahuro-Mukuyu road in Maragi location of Murang’a County, the duo, while armed with a dangerous weapon namely knife attempted to rob Faith Kwamboka Mbaka and at the time of such attempt used actual violence to the said Faith Kwamboka Mbaka. 5.The Appellant was arraigned in court on 13.2.2023 where he pleaded not guilty. The court heard the matter and found the Appellant guilty and convicted him on all the 3 counts on 14.2.2023. The court sentenced him to serve death penalty in count II and held the sentence in count I and II in abeyance. 6.The Appellant filed a petition of appeal dated 16.4.2024 setting out the following grounds of appeal:a.That the trial court erred in both law and in fact in convicting the appellant when the Respondent failed to describe clearly the alleged perpetrators of the offence.b.The trial court erred in both law and in fact in relying on poor identification at night, violating Turnbull guidelines.c.The trial court erred in law and in fact in failing to find that the mode of arrest had no connection with commitment of the offences.d.The trial court erred in law and in fact in failing to find that the prosecution evidence was marred with contradictions, inconsistencies and discrepancies.e.The trial court erred in law and in fact in failing to analyse submissions and defence of the Appellant and shifting the burden of proof.f.That the trial court erred in law and in fact in meting out a maximum mandatory harsh sentence of death which was manifestly excessive as per the circumstances of this case. Evidence and Proceedings 7.PW1 was Risper Nkirote Mugambi. She was a student at Kiharu Technical College. According to her, on 11.2.2023, there was a freshers’ night in college and she was heading out to go to her hostel at 2.30 am. She was in the company of Franklin Gikunda. About 200m from the college gate, they saw a motorbike approaching and on reaching them it stopped. It was motorcycle registration No. KMFL 392Q. 8.She testified that there were security lights from the college compound that lit the area and the motorcycle’s light was on, which supplemented this. She was thus able to see 3 men on the motorcycle that had now stopped. 2 of the three men alighted and approached her with Francklin. They offered to carry Risper and Franklin, who declined. One man pursued PW1 while the other pursued Franklin. Franklin managed to escape and the man pursuing him followed chasing him. The man pursuing PW1 manhandled her and was joined by the man who had pursued Franklin shortly after. The duo ransacked her pockets and got her mobile phone which they took away. She was left on the ground and the duo fled. Franklin later arrived with the school dean and assisted her to go back to the college. The matter was reported the next morning to the police station. 9.On cross examination, PW1 testified that she saw the assailants clearly. The scene was well lit by security light. Franklin was dressed in flowered shirt and had no jacket. 10.PW2 was Franklin Gikunda Mugungo. He was with PW1 at the time of the robbery with violence. He managed to escape. With PW1, he was at outside the college gate. The men approached on a motorbike and stopped. He heard the men demand them to hand over phones. He saw 4 men. Francis Thiong’o is the one who pursued him. On return to the scene, he found PW1 down and the assailants had escaped. 11.On cross-examination, PW2 testified that the motorcycle rider had covered his face and, therefore, he was unable to identify him. He further stated that the motorcycle involved was red in colour. 12.PW3 was Dennis Kari Mukanyi. He lived in Mukuyu area and supplied bread from the depot using his motorcycle registration number KMFL 392Q Make Captain red in colour. The Appellant was one of the riders who supplied bread. He would use the motorcycle also as bodaboda at an agreed daily rate of Ksh. 300/=. On 10.2.2023, he had gone to Maragua Ridge and left the motorcycle with the Appellant. That night around 4.30 am, a friend known as Duncan called him and informed him his motorbike was about to be burned down near Kiharu Technical College as the person he had given had used it to rob people of their phones. 13.He got up and rushed to the scene. He saw the motorbike and the Appellant emerged from the place he had hidden. His motorcycle was hidden and he noted that it had no fuel. He fueled it and took it to the police station. On cross examination, he did not know who hid the motorbike. The Appellant had hidden on the opposite side. The Appellant led police to the house of the Francis Thiongo who was arrested in connection with the offence. 14.PW4 was Michael Oduor Omondi, a lecturer and Dean of Students at Kiharu Technical College. He testified that on 11.02.2023 at about 2.30 a.m., he was at the college attending a Fresher's Night event, which required his presence. He heard screams and, together with others, rushed to the scene. Upon arrival, he saw one Franklin running towards the gate and observed PW1 lying on the ground at some distance away, screaming. He was informed that the men who had robbed the students had already fled. The matter was subsequently reported to Murang'a Police Station. He further stated that other students, namely Gitonga and Faith, had also been attacked by the same men who were riding the same motorcycle. 15.On cross-examination, PW4 testified that he saw the assailants and that they attempted to stop him. However, he stated that he did not know them and was therefore unable to identify them. 16.PW5 was Godfrey Gitonga. He knew the Appellant though they were not related. On 11.2.2023 at 3.00 am, he was headed home from Kiharu Technical College. He was with Faith Kwamboka. Reaching Maragi Secondary school area, a motorcycle approached them. Its registration number was KMFL 392Q. Those on board alighted. They approached him and asked for a phone. They were 4 men. One was armed with a knife. He placed on Faith demanding her phone. They attacked. 17.He managed to snatch the knife and throw it away. He was cut on the left arm. He recognized the Appellant. He had earlier carried him on the motorcycle. The Appellant then fled. He pursued the Appellant. The other 3 men followed him throwing stones. He hid in a bush. He later went back to check Faith. The attackers fled on the motorcycle. 18.On cross-examination, the witness stated that he clearly identified the Appellant as the motorcycle rider. He further testified that he arrested the Appellant, but the Appellant escaped and fled. 19.PW6 was Faith Kwamboka Mbaka. She was a student at Kiharu Technical College. On 11.2.2023, she was in the company of PW5. She was heading to her hostels. A motorcycle approached from behind. It was 0300 hours. The motorcycle parked at Maragi Secondary. She saw the registration number. It was KMFL 392Q. 4 men alighted and demanded them to stop. They did not. One man drew a knife and a phone. PW5 took her phone and kept with him. PW5 recognized one man who fled. The other 3 men followed throwing stones at PW5. The man who ransacked her had wrapped his head with a shuka. She did not identify the attackers. On cross examination, she stated that she read the number plate as the motorcycle drove past them before stopping. 20.PW7 was No. 256351, Jacob Mutua from DCI Murang’a. He was the investigating officer. On 11.2.2023 at 7.00 am, PW3 came to the station reporting that his motorcycle was used in a crime in robbing people. He had given it to the Appellant. Some students had been robbed. PW3 led him to the Appellant’s house. He was assisted by PC Thumbi. The Appellant gave a phone he had stolen. It was Zte Mobile phone. They had not managed to trace the owner. 21.The Appellant then led them to the house of Francis Thiongo and they found him sleeping. He woke up. He said that the phones they had stolen were with one of them. He offered to take them to the other suspect. They did not find him. They were told he was at a construction site. They headed there. On arrival, he escaped and has not been found. There was no need for identification parade as PW3 recognized the attackers. PW1 also identified the Appellant. 22.On cross examination, he testified that the Appellant left his ID Card with PW3 when he took the motorcycle for bodaboda use. The motorcycle was in his custody during the robbery. They did not recover anything from Francis Thiongo. 23.PW8 was Lawrence Wanduru Njoroge. He was a clinical officer at Murang’a Referral hospital. He filed P3 Form for PW1. On examination, she had tenderness and bruises on her left knee consistent with assault. The degree was harm and the weapon used was crude. On cross examination, the injury was caused by a hard surface consistent with a hit or fall. 24.At the close of the prosecution's case, the Appellant was placed on his defence, the court having found that a prima facie case had been established against him. The provisions of section 211 of the Criminal Procedure Code were duly complied with. The Appellant elected to give sworn testimony and was accordingly cross-examined by the prosecution. 25.DW1 was the Appellant. He testified that he was 23 years old. He recalled that on 11.02.2023, he had been hired to do some work in Sagana where he grafted 1,000 trees. At about 6.00 p.m., he travelled to Murang'a and arrived at Mukuyu at around 7.00 p.m. While at Mukuyu, he met one Francis Thiongo, who informed him that he wished to purchase a mobile phone. The Appellant told Francis that he had a phone which he was selling for Kshs.1,500/=. They agreed to meet the following morning to discuss the sale. On the following day he was awakened by a knock on his door. Upon opening, he found police officers in the company of PW3. He was then arrested. 26.On cross-examination, he maintained that on the night of 11.02.2023 he had been asleep in his house. He also admitted that he had previously worked for PW3 using the motorcycle in question. However, he did not use the same on the material date. 27.DW2 was Francis Thiongo. He was a bodaboda rider. The police told him to give them the phone he had bought from the Appellant. The Appellant had not even shown them the phone he wanted to sell to him. The phone was recovered from the Appellant. On cross examination, he was home asleep on the night of the alleged offences. Submissions 28.The Appellant filed submissions dated 19.11.2025 by which it was submitted that he was convicted without clear evidence on identification and recognition. That the alleged source of light was not proved to be sufficient to identify the Appellant. Reliance was placed on the case of Teresia Nduta v Republic (2016) eKLR. It was also submitted that the Appellant was not identified at the scene of crime and he was home at the time of the alleged offence. 29.On sentence, it was submitted that the sentence was mandatory maximum and was unconstitutional as it breeched his rights to fair hearing under Article 50(2) of the Constitution. He was a first offender, remorseful and suitable for rehabilitation. He also cited Article 26 of the Constitution. 30.I have not had sight of the Respondent’s submissions. Analysis 31.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 32.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, the former East Africa Court of Appeal stated on the duty of the court on a first appeal 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 court's 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] E.A. 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 court's 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] E. A. 424. 33.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 34.Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 35.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 36.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 37.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 38.In criminal cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR), expressed himself as hereunder:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.” 39.Reasonable doubt needs not reach certainty, but it must carry a high degree of probability. In the case of Moses Nato Raphael v Republic [2015] KECA 787 (KLR), the court of appeal[ Githinji, Karanja & Mwilu, JJ.A] held as follows:“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” 40.PW1 stated that she saw the Appellant. There was security light. The Appellant was wearing a flowery shirt. He wrestled PW1 and was accompanied by Francis Thiongo when they manhandled her, ransacked her and having thrown her to the ground snatched her phone. PW3 stated that his motorcycle in question was given to the Appellant who had it on the material early morning. However, this is not borne out of evidence. 41.At least one element of his defence was proved, that he was sleeping. What he was doing the previous day is irrelevant. He was sleeping when the police and PW3 came to his house. Nothing placed him on the subject motor vehicle. One witness indicated, and rightly so, that the rider covered his face. If the rider covered his face, what magic did the rest use to see him. Some pointed out that the appellant was not the rider but one of the participants. Others placed him as a rider. 42.PW4 was categorical that he was unable to identify the assailant. This is crucial since the PW4, saw the assailants but did not identify them. What hindered him from identifying the assailants, lights? The witness could be said a neutral one. He was not injured in the process. Other than responsibility, he had no horse in the matter. Pw1 and pw2 could not each identify the same person. Pw1 was of the view that pw2 went back to help. On the other hand, PW2 maintained that he managed to escape. Such contradictions raise doubt as to the truthfulness of the sequence of event as narrated by PW1. 43.Further the evidence of DW2 and PW3 are accomplices. Their evidence cannot be relied on without safeguards that must follow evidence of an accomplice. First it was not shown that the appellant had the phone. On accomplice evidence, the court of appeal in the case of John Kirunji m’rimbere v Republic [2015] KECA 107 (KLR), the court of appeal [Nambuye, Kiage & Sichale, JJ.A)],posited as follows:On the issue of accomplice evidence which the appellant contends was improperly acted upon, this Court in Stephen Kaleng Makalale & Another–VS- R (2010) eklr observed,“The position in law with regard to accomplices is this. An accomplice is a competent witness against an accused person (see S.141 of the Evidence Act, Cap 80 Laws of Kenya). However such evidence needs corroboration. In the case of UGANDA –VS- SHAH [1966] EA 30, the Court of Appeal For East Africa, in dealing with the question of accomplice evidence, rendered itself, as follows:“The second and third grounds of appeal were that the learned judge had erred in holding that there was no independent evidence incriminating either the first or third respondent, corroborating the accomplice evidence against them. The facts relied on by the prosecution were the finding of the 113 ½ bags of Arabica coffee on the Busikikiri Estate where only Robusta was grown, and the expert evidence that the coffee so found was similar in quality to the stolen coffee.The learned magistrate held that these facts were capable of amounting to corroboration.…Evidence to be corroborative must be independent and it must implicate, or tend to implicate, the individual accused in the offence.” 44.Accomplice evidence for all practical purposes, as the law in this country stands, is worthless. There must be steps taken to ensure that the accomplice is not protecting his own skin. The same must be free from motivation or must in the process also implicate the accomplice. If it is for the accomplice to wriggle out of criminal liability, the motivation to lie is higher. In the case of Nyamongo v Republic [2025] KECA 639 (KLR), the court of appeal[HM Okwengu, HA Omondi & JM Ngugi, JJA], stated as follows:The correct judicial treatment of accomplice evidence in criminal cases was best summarized in Waringa -V- Republic [1984] KLR 617 where this Court down the following three principles in considering accomplice evidence:a.When considering the evidence of an accomplice, the first duty of the court is to decide whether the accomplice is a credible witness.b.If the accomplice evidence is credible, the court should consider if there is corroborating evidence. This step only follows if the Court finds the accomplice is a credible witness. The corroboration which should be looked for when considering the evidence of an accomplice is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.c.The corroboration must be independent evidence which affects the Accused Person by connecting him or her or tending to connect him or her with the crime.64.In a later case, Karanja & Another -V- Republic [1990] KLR, this Court, while affirming the principles laid down in Waringa (supra), suggested that there may be circumstances where corroboration may be unnecessary:Although there may be cases of an exceptional character in which an accomplice’s evidence alone convinces the court of the facts required to be proved, the uncorroborated evidence of such a witness should generally be held to be untrustworthy for three reasons. The accomplice is likely to swear falsely in order to shift the guilt from himself. As a participator in the crime, he is an immoral person who is likely to disregard the sanctity of an oath. He gives his evidence either under a promise of a pardon or in expectation of an implied promise of pardon and is therefore liable to favour the prosecution ….. An accomplice is of course a competent witness but corroboration should be found for his evidence before a conviction can be based upon it.”65.Hence, the law and practice on accomplice evidence as it exists in Kenya today is that while an accomplice is a competent witness, accomplice evidence should be received with great caution, and where uncorroborated, should have little weight. As such, our decisional law has clarified that while a witness’s status as an accomplice does not render his or her evidence unreliable per se, a trial court must exercise appropriate caution in assessing his or her evidence. In particular, when weighing the probative value of accomplice evidence, the trial court is obligated to carefully consider the totality of the circumstances in which the evidence was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person or to lie. This judicial treatment of accomplice evidence is based on the fear that an accomplice may be motivated to falsify his testimony in the hope of securing leniency for himself or herself. However, the dangers associated with accomplice evidence are greatly reduced or eliminated where the key aspects of the accomplice evidence are corroborated. The dangers are also substantially mitigated where, as here, the accomplice evidence is not testimonial but in the form of a confession which has not been incentivized by the state. 45.The evidence of DW2 and PW3 cannot as such be used as against the appellant herein. The court below misdirected itself in relying on the evidence of PW3 as evidence against the appellant. 46.Secondly that the phone that was produced was not robbed from any of the complainants. It is crucial to note that none of the items robbed on the material day were recovered from the accused just a few hours after the alleged robbery. The phone allegedly recovered was not linked to the robbery in issue. It was not shown to have been robbed on the material day. None of the items robbed on the material day were recovered from the accused just a few hours after the alleged robbery. It is irrelevant if the phone recovered had been stolen from unknown person. The court should be concerned with the charge before it. The appellant could be charged on another day for the offences related to the recovered phone. It cannot be fixed in a robbery from whence it was not stolen. In any case, if DW2 is to be believed, the phone was available before the robbery. 47.On the other hand, Pw3 was in possession of the motor cycle involved in the robbery barely 2 hours earlier. No one bothered to check his place. 48.On the other hand, PW3 was in possession of the motor cycle involved in the robbery barely 2 hours earlier. No one bothered to check his place. 49.On his part, the Appellant maintained the he did not commit the crime and was wrongly identified as he was not at the crime of the crime at the time stated as he was sleeping in his house. It was his case that he was arrested simply because he had promised to sell to Francis Thiongo, the co-accused a phone. 50.The parties were meeting for the first time. The appellant was not arrested with any of the properties allegedly recovered. Only one witness alluded to identify him. That is PW1 for count 3 and PW5 for count 2. The offence allegedly took place at 2.20 am. There is no evidence on the nature and intensity of light. There needed to be an identification parade. None was held. The conditions were difficult. The witnesses can be sure but mistaken. The identification parade is necessary in the circumstances. In the case of Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR), the court of appeal [Platt & Apaloo, Jj.A. And Masime Ag. J.A] held as follows:As the learned judge found that the evidence of his identification was doubtful, we would have left the matter there, had not counsel for the republic remarked that the identification of the appellant by the doctor in court would have been sufficient. When we expressed surprise counsel invited the court to express its opinion. Dock identification is worthless the court should not rely on a dock identification unless this has been preceded by a properly conducted identification parade. A witness should be asked to give description of the accused and the prosecution should then arrange a fair identification parade.On many occasions this court has held that such identification is almost worthless without an earlier identification parade (see Owen Kimotho Kiarie v Republic, Criminal Appeal No 93 of 1983 relying on Rachhodas & Thakore, The Law of Evidence, (The Indian Evidence Act) 13th edn p 151.) The operation of this rule may be observed in Gopa s/o Gidamebanya v Republic (1953) 20 EACA 318 at 322 et seq.Dr Macharia was a single identifying witness, whose evidence had to be tested with the greatest care, as the trial court fortunately remembered (Roria v Republic[1967]EA 583). That cannot be done unless the identifying witness had made a report as to whether he could identify the accused and given a description. His ability to identify the accused is then to be tested on an identification parade. (See Republic v Mohamed bin Allui (1942) 9 EACA 72, Rex v Shabani Bin Donald (1940) 7 EACA 60 and Owen Kimotho Kiarie (supra). If one is to test the evidence with the greatest care this was the way that Court of Appeal in England in Republic v Turnbull [1976] 3 All ER 549 saw the examination. The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation ? At what distance? In what light? Was the observation impeded in any way, e.g by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and the accused’s actual appearance? 51.This was reiterated in the case of asamuel Kilonzo Musau v Republic [2014] KECA 372 (KLR), Where the court of appeal [Githinji, Karanja & M’Inoti, JJ.A)], stated as follows in regard to identification parade.As the Committee on Evidence of identification in Criminal Cases, 1976 (The Devlin Committee), Cmnd, 338 observed, the identification parade is not a scientific test and cannot safely be treated as one. Instead, it is merely the best practical method of achieving an identification without confrontation. The purpose of an identification parade, as explained in Kinyanjui & 2 Others V Republic (1989) KLR 60, “is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion.” It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification. 52.This was further elucidated in the case of John Mwangi Kamau v Republic [2014] KECA 168 (KLR), where the court of appeal [Visram, Koome & Odek, JJ.A] addressed the question of the purpose of the identification parade as follows:On the issue of whether the identification parade was properly conducted we can do no better than to reproduce this Court’s observations in David Mwita Wanja & 2 others –vs- Republic- Criminal Appeal No. 117 of 2005:-“The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29. There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia v Republic [1986] KLR 422 where the court stated at page 424:“It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course, if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”Indeed, Police Form 156 which is designed pursuant to Force Standing Orders issued by the Commissioner of Police under section 5 of the Police Act Cap 5 Laws of Kenya and which is invariably used in the conduct of identification parades expressly provides for 16 or so requirements which ought to be observed. As far as is relevant to this case, Standing Order 6(iv) (d) and (n) state as follows:“6. (iv) Whenever it is necessary that a witness be asked to identify an accused/suspected person, the following procedure must be followed in detail: -…………………………………………………………(d)The accused/suspected person will be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself. Should the accused/suspected person be suffering from a disfigurement, steps should be taken to ensure that it is not especially apparent;…………………………………………………(n)The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified;” 53.Therefore, the failure to conduct an identification parade was fatal to the case. The next and related aspect is the failure of the court to warn itself of the dangers of relying on a single identifying witness in respect of each robbery. It must be recalled that the three incidents were said to have to have taken place in three different places. In the case Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), the court of appeal[Kihara Kariuki (PCA), Musinga & Gatembu, JJ.A)] addressed the question of a single identifying witness as follows:More often than not, the conviction of an accused person solely on the evidence of a single identifying witness poses some uncertainty. In MAITANYI v REPUBLIC [1986] KLR 198, this Court stated as follows:1.Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.2.When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description.3.The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before decision is made.4.Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction.” 54.This was also restated in the case of John Muriithi Nyagah v Republic [2014] KECA 506 (KLR), where the court of appeal [Warsame, as he then was, G.B.M. Kariuki & Kiage, JJ.A] held as follows in respect to a single identifying witnesses and the duty of the court:The evidence in the trial Court was by a single identifying witness. Evidence of a single identifying witness must be examined with considerable circumspection to ensure that it cannot but be true before a conviction is founded on it. It was in Kiilu & Another V. Republic [2005] 1 KLR 174 that this Court, differently constituted, held -“Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error.”The only evidence implicating the appellant was by PWI. Was it water-tight and such as could not but be believed or did it leave room for doubt? Mr. Mutembei submitted that it was not. He contended that the first appellate court put forward a theory not supported by evidence or counsel who appeared so as to justify upholding the conviction 55.In the reevaluation by this court, it is not difficult to find that the trial court found the Appellant guilty on the evidence of PW1, PW3 and PW5 which according to the court was without doubt and credible and proved the case against the Appellant beyond reasonable doubt. In R –vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated doth:The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made… 56.On identification the law has also been settled. It must be proved that the Appellant is guilty beyond reasonable doubt. In R –vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated doth:The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made… 57.The prosecution’s case was that PW1 identified the Appellant as there was security light and the moonlight. PW5 indicated that he knew the Appellant as he had carried him on the motorcycle earlier. A witness can be sure but mistaken to remove the doubts, a parade was necessary. PW5 alleged to have seen the appellant earlier but was known known to him. It could not be said to be a proper identification. In the case of Bernard Kariuki Mburu & another v Republic [2015] KECA 164 (KLR), the court of appeal[Maraga JA, as then he was, Musinga & Murgor JJ.A], dealt with the issue of identification where a witness can be honest but mistaken which may lead to miscarriage of justice as follows:We have no reason to question the credibility of PW1. However, as this Court has repeatedly stated, a witness can be honest but mistaken; See the case of Enos Mbanja Okuru v. Republic, Criminal Appeal No. 112 of 2005. We are satisfied that the complainant in this case could have been honest but mistaken. 58.The foregoing had earlier been addressed and contextualized in the locus classicus case of Kimotho Kiarie v Republic [1984] KECA 65 (KLR), where the court of appeal [Kneller JA, Chesoni & Nyarangi Ag JJA] posited as follows in regard to identification:The Senior Resident Magistrate and the judge thought PW 1 and PW 2 were honest witnesses. We do not quarrel with that assessment. However, a witness may be honest but mistaken: Roria v R [1967] E A 583 and a number of witnesses could all be mistaken. R v Turnbull and others [1976] 3 All ER 549. The trial and the first appellate court excluded altogether the possibility of a mistake on the part of the complainant and his wife. In the circumstances of this case, that, in our view was a substantial error. It is relevant that the complainant did not tell Sergeant Mwangi, (Pw 3), that he had seen any of the robbers before the time of the robbery and that he could recognize or identify any of them. PW 1’s report to PW 3 was an immediate report to a police officer and so the details of the report should have been given at the trial: Rex v Shabani Bin Donald (1940) 7 EACA 60. Where the evidence relied on to implicate an accused person is entirely of identification that evidence should be watertight to justify a conviction R v Eria Sebwato [1969] EA 174. The Senior Resident Magistrate took into account the identification of the appellant in court by the complainant. Such identification is almost worthless without an earlier identificationparade – see for example, The Law of Evidence, (the Indian Evidence Act) by Ranchhodas & Thakore, 13th edition, page 151. 59.The Appellant alleged material contradictions, discrepancies and inconstancies in the evidence of the Respondent. On this, this court has to establish whether the alleged discrepancies and contradictions were fundamental as to cause prejudice to the Appellant. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) [Tunoi, Lakha & Bosire JJ.A] held as follows:In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence. 60.Material discrepancies and inconsistencies in the prosecution's evidence are among the factors that may weaken the burden of proof and raise reasonable doubt. In the present case, the Respondent was also required to prove the use of violence against PW1. According to PW8's evidence, PW1 sustained bruises classified as harm. Although the prosecution did not prove that a dangerous weapon was used, it was incumbent upon it to establish beyond reasonable doubt that violence was used and that the Appellant acted jointly with others in forcefully robbing PW1. 61.For purposes of the offence of robbery with violence, it is immaterial whether only one of the assailants was armed or personally used violence, or whether no weapons were carried at all. The offence is established where any of the ingredients under section 296(2) of the Penal Code are proved, including that the offender was in the company of one or more persons or that actual violence was used on the complainant during the robbery. However, the one ingredient of the offence that must be proved as per the charge sheet is that they were armed with a knife. It does not matter if it was actually used. The Court of Appeal in Peter Mwangi Kamau v Republic [2013] KECA 250 (KLR), the court of appeal posited as follows:It is also clear from the record that, the robbers were in possession of a pistol, a dangerous weapon and with iron bars which were used to inflict harm upon PW1. Thirdly, they did in fact inflict violence upon PW1 and PW2 in the course of the robbery. Any one of these three ingredients was sufficient to support a conviction of the appellant with the charge of robbery with violence. 62.Having reevaluated the evidence in relation to count II and III and I am unable to agree with the trial court that the three counts were proved beyond reasonable doubt. On the contrary none of the counts was proved. 63.First the court disregarded the appellant’s defence. There is provision of law requiring disclosure of alibi in advance. It is a throwback to 2003. The law was amended vide the Criminal Law (Amendment) Act, 2003 (Act No. 5 of 2003). Vide section 87 of the said Act, Section 307(2) of the Criminal Procedure Code was repealed. The repealed section provided as follows:(2)Notwithstanding the provisions of subsection (1), the accused person or his advocate shall not, without the leave of the court, the reasons for which shall be recorded, adduce alibi evidence unless details thereof, and the names and addresses of any witnesses in support thereof, were provided at the committal proceedings or in writing to the committal court and the prosecution within fourteen days thereafter. 64.The remaining section is now 307(1) that reads as follows:307 (1) The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case. 65.The duty to prove falsity of the alibi lies with the state. There is now, no duty to disclose any defence evidence before it is tendered. It is good practice to raise the same in cross examination but failure to do so cannot be read against the appellant. In the case of Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), the Court of Appeal [Kihara Kariuki (PCA), Musinga & Gatembu, JJ.A] rendered itself thus on the issue of alibi:“…the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.” 66.The one issue that the court failed to address critically was the evidence in defence. The court summarily dismissed the defence of alibi. The section repealed meant that there is no restriction on when an alibi can be given. Requiring prior disclosure is not based on any law in force in Kenya. The question of the rights of the prosecution to receive in advance defence evidence was addressed in the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), where the court of appeal [R.S.C. Omolo, E. O. O’Kubasu and J. W. Onyango Otieno] posited as follows:So, if at the beginning of the trial, the Constitution obliges everybody to assume that an accused person is innocent, what case is he to disclose in advance? Mr. Tobiko’s position appears to be that if the accused person chooses to give evidence and call witnesses then he ought to be able to disclose his case to the prosecution. That contention, however, ignores one basic distinction. The privileges, if we may so designate them, of the accused person are conferred on him by the Constitution. As soon as he is arrested, he shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. Nobody is ever likely to arrest the Republic of Kenya and charge it with a criminal offence so that it would require it to be informed of the nature of the offence against it. The question of reciprocity is, therefore, misplaced. …That approach by the learned Judge creates the dangerous theory that what is convenient and would expedite the disposal of a matter is lawful. The proposition ignores the fact that the rights of an accused person are considered to be so important that they are protected under section 77 of the Constitution. Against whom are those rights protected? The answer to the question must be obvious. The rights can only be protected against those who have the unlimited capacity and resources to deprive individual Kenyans of their life, liberty, security of the person, freedom of conscience, freedom of expression, of assembly and of association. We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: If you rattle a snake, you must be prepared to be bitten by it. ….We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers.They cannot be given through the inherent power of the court. Even in civil matters, there is a specific provision in the Civil Procedure Act, Chapter 21 Laws of Kenya, recognizing the existence of the inherent power of the court:To make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. – see section 3A.There is no similar provision in the Criminal Procedure Code, Cap 75 Laws of Kenya and we think the omission is deliberate. But even if there was such a power with regard to criminal matters, we do not accept that a judge would be entitled to create non-existent rights and confer them upon a party as the learned Judge purported to do here. 67.The section repealed meant that there is no restriction on when an alibi can be given. Requiring prior disclosure is not based on any law in force in Kenya. Any decision based on a repealed section is not just bad in law but is not law. However, the duty to prove the falsity of an alibi still remained with the prosecution. The appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. 68.The appellant was not under duty to disclose his defence before being put on the defence. In any case, the State has a chance to call rebuttal witnesses. The case for the appellant from the cross examination was that he was not at the scene of crime. 69.Any decision based on a repealed section is not just bad in law but is not law. However, the duty to prove the falsity of an alibi still remained with the prosecution. The appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. 70.The accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as doth:39.Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these linesThe accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression beyond a reasonable doubt mean? The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.40.This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory. 71.If evidence was tendered that was surprising to the state, they had a chance under section 212 of the Criminal Procedure Code to call for rebuttal evidence. The section provides as follows:If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter. 72.The appellant was not under duty to disclose his defence before being put on the defence. In any case, the State has a chance to call rebuttal witnesses. The case for the appellant from the cross examination was that he was not at the scene of crime. 73.Indeed only PW3 alleged that the appellant confessed to him. Such a confession did not meet the standards set out in section 25A of the Evidence Act. The said section provides as follows:(1)A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.(2)The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court. 74.The Respondents case was that PW3 had given the Appellant the subject motorcycle that that Appellant used in crime. It appears the evidence of PW3 made it unnecessary to conduct an identification parade. Yet the court had to discern that the burden remained with the Respondent and recent possession could not be used as basis to convict. On recent possession, in the case of Isaac Ng’ang’a Kahiga & another v Republic [2006] KECA 137 (KLR), the Court of appeal [P.K. Tunoi, S.E.O. Bosire and E.M. Githinji] stated:It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the 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 to the other.” 75.If we were to use the doctrine of recent possession, the person of interest can only be PW3. Positive possession in this case was with PW3. He alleged to have been called by a person who was never called as a witness. There was no evidence that the appellant was in possession. In fact, the person to do the explaining was not the appellant but the person in possession of the motor cycle. In this case PW3. In the case of David Mugo Kimiinge Vs Republic [2015) eklr, where the court when commenting on the doctrine of recent possession stated that:-“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in criminal case, the possession must be positively proved. 76.There was no evidence that the appellant was in possession. In this case, PW3 was in the wrong end of the dock. His motor cycle was identified as being the one used to carry out the robbery. The robbery ended at 2.30 am. He was in possession of the motorcycle in the morning. Barely three hours after the robbery. He had no explanation how he came into possession of the motor cycle. Such evidence is bogus and reminds me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR), where he posited as follows:….Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”5.In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that“in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…” 77.The Court of Appeal set out the elements of the doctrine of recent possession in the case of Arum v Republic [2006] KECA 385 (KLR), where the court of appeal [PK Tunoi, EO O'Kubasu & JWO Otieno, JJA] posited as follows: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, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that 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 the other. In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. 78.The burden of explaining the recent possession is on the Appellant. However, he bears no duty of disproving possession by PW3. In this case there was no positive possession no amount of evidence can place the motor cycle in recent of possession of the appellant. If PW3 was the accused, the doctrine could have applied to him. In absence of recent possession, then the evidence of PW3 remains that of n accomplice trying to shift blame from himself as a recent possessor and a man who should be serving sentence and the appellant. 79.One question that PW3 did not answer is how, a motor cycle that was to be set ablaze at 2.30, or 4.30 as the case maybe ended up to being hidden by the appellant. In other words, is Duncan the other robber or he was a fictitious person. Why did the state not call him to explain what he was doing at the scene of crime at 4.30 am? Why will an irate crowd postpone burning a motor cycle and return to where the appellant allegedly hid it? Was the crowd hiding the motor cycle from themselves? Simply put, PW3’S evidence was false. He was the robber. 80.Further in the case of Paul Mwita Robi V Republic [2010] KECA 381 (KLR), the court of appeal[R.S.C. Omolo, J.W. Onyango Otieno and J.G. Nyamu JJ.A] posited as follows:Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is especially within the knowledge of the accused and pursuant to the provisions of section 111(1) of the Evidence Act Chapter 80, the accused has to discharge that burden . The provision states:“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him.”Thus while the law is that generally in criminal trials, the prosecution has the burden of proving the case against the accused throughout and that burden does not shift to the accused, however, in a case where one is found in possession of a recently stolen property like in this case, the evidential burden shifts to him to explain his possession. That explanation only needs to be a plausible one but he needs to put it forward for the court’s consideration. This is what the superior court was alluding to in its judgment. 81.The Appellant was not found with the motorcycle. The testimony of PW3 was that Duncan called him and informed him that his motorcycle was about to be burnt down as it had been used in the commission of a robbery. On arrival he saw the motorcycle which had run out of fuel. The Appellant then emerged from the surrounding bushes. In the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) (21 January 2022) (Judgment), the Court of Appeal stated as follows regarding the doctrine:We start with the question whether the doctrine of recent possession was properly invoked. As regards the circumstances under which the doctrine of recent possession may apply, in Athuman Salim Athuman vs. Republic [2016] eklr, thiscourt held that:“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how be came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See MALINGI V. REPUBLIC (1989) KLR 225 H.C and HASSAN V. REPUBLIC (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in ISAAC NG’ANG’A KAHIGA ALIAS PETER NG’ANG’A KAHIGA V. REPUBLIC, CR. APP. NO. 272 of 2005, where this Court stated:“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the 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 to the other.” 82.The possession itself must be sufficient. It cannot be that the good must be physically in the hands. Even having control over the same is adequate. The supreme court of the Supreme Court of Uganda in Bogere Moses & Another vs. Uganda, Cr. App. No. 1 of 1997 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." 83.The only question remaining for determination was whether the state proved beyond reasonable doubt that the two or more persons that were involved were actually the appellant and or the other accused persons. The witnesses recognized to be the appellant as a person known to them. The appellant himself did not question the identification. Recognition was addressed in the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 84.The case of Maitanyi v Republic [1986] KECA 39 (KLR), where the court of appeal [Nyarangi, Platt & Gachuhi JJA] addressed the question of a single identifying witness as follows:Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 85.In this case there is no other evidence, circumstantial or direct. The decision must turn on the need for testing with the greatest care the evidence of this single witness. Is that what the courts below really did? Circumstantial evidence must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), the court of appeal [P. Kihara Kariuki, PCA, M’Inoti & Murgor, JJ.A] Court had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 86.The court proceeded on the wrong premises that as PW3 had linked the Appellant to the motorcycle that was used in the alleged crime, there was no need for parade identification. This was the testimony of the investigating officer who saw no need to conduct a parade. As above observed, there was no confession and so there was need to clearly identify the person who allegedly robbed the Complainants beyond reasonable doubt. 87.Based on the above analysis, I find that the conviction was unsafe and accordingly set aside. In the circumstances the appeal against the conviction is allowed. Having found that the offence in counts I, II and III were not proved to the required standard, the conviction has to be set aside. I find no utility delving into the issues of sentence which cannot equally stand. Determination 88.In the upshot, I make the following orders:a.The appeal on conviction on counts I, II and III and sentence is hereby allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held.b.Right of appeal 14 days.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 25TH DAY OF JUNE, 2026.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Appellant presentMr. Maina for the ODPPCourt Assistant – MartinD. KIZITO, J.