James Owino Oduor & Nicholas Mureithi Nyaga v Republic

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAKURU** **HIGH COURT CRIMINAL APPLEAL NO. E069 OF 2024** **JAMES OWINO ODUOR..........................................................1ST APPELLANT** **NICHOLAS MUREITHI NYAGA...........................................2ND APPELLANT** **VERSUS** **REPUBLIC ...................................................................................RESPONDENT** ***(Being an appeal from conviction and sentence in Molo Criminal Case No. E2273 of 2022 by Hon. B. R. Kipyegon (PM) on 29th July, 2024)*** **JUDGMENT** 1. The appellants, **James Owino Oduor** and **Nicholas Mureithi Nyaga**, were the 1st and 2nd accused persons respectively in Molo Chief Magistrate’s Court Criminal Case No. E2273 of 2022. 2. They were jointly charged with robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. A third accused, Peter Cheruiyot Kipyegon, was initially jointly charged with them, but the proceedings record that the charge against him was withdrawn on 15th March 2024. 3. The particulars of the charge were that on the night of 13th and 14th September 2022 at about 1.00 a.m., at Alpacino’s Lounge in Rongai Sub-County, Nakuru County, the appellants, jointly with others not before the court, while armed with dangerous weapons, namely metal bars and an axe, robbed Paul Oigo Kidiga of four 42-inch flat-screen television sets, one 32-inch flat-screen television set, one laptop, a DJ mixer, assorted kitchen utensils, assorted alcoholic drinks and three mobile phones, and immediately before or immediately after the time of the robbery used personal violence against him. 4. The charge sheet records the date of arrest as 2nd November, 2022 and the date of arraignment before the court as 17th November 2022. The Prosecution called ten (10) witnesses. The evidence, insofar as material to the appeal, may be summarised as hereunder. 5. **Joseph Mahero (PW1)**, described himself as a director of Alpachinos Lounge Bar and Restaurant near Ngata, Nakuru. He testified that on the night of 13th and 14th September 2022, at about 3.00 a.m., he received a telephone call from his chef, Willy, informing him that the premises had been attacked by robbers. He was informed that the watchman and other workers had been attacked and that one of them had been stabbed on the neck. 6. PW1 alerted the OCS, Ngata, and subsequently proceeded to the premises. He found that the premises had been broken into. Five television sets, assorted alcoholic drinks, a decoder, a DSTV free-to-air set, a laptop and two mobile phones were missing. 7. He also stated that the CCTV system and the cameras at the DJ deck had been damaged. He reported the matter to the police and stated that investigations were subsequently taken over by the DCIO. He testified that the CCTV footage showed approximately six persons carrying pangas and bags. According to him, their faces were masked. He was unable to state whether either of the appellants appeared in the footage. 8. The evidence by **PW2**, **No. 235194 CI Samuel Kigen**, concerned the analysis of CCTV footage obtained from the premises. He testified that the footage covered the period between 1.00 a.m. and 1.54 a.m. on 14th September 2022. From the footage, he prepared 54 still photographs. 9. He described the activities captured, including persons entering the premises, ransacking drawers, removing television sets from the walls, carrying television sets and sacks, packing alcoholic drinks, breaking into the liquor store and vandalizing the cameras. It was his evidence that that four men were captured inside the restaurant. Some had their heads covered while one wore a cap. He nevertheless stated that most of the faces were covered and that, because of the poor lighting, he was unable to identify any of the persons depicted. The witness produced his Report dated 27th January 2023, the Exhibit Memo, Certificate, 54 still photographs and the flash disc containing the CCTV footage as exhibits. 10. **PW3, Paul Oigo Kidiga,** a caretaker at Alpacino Garden testified that on 13th September 2022, at about 11.00 p.m., he went to sleep. At about 1.00 a.m., he heard kicks on his door and three men entered his room which was lit by electricity. He stated that one of the men who was wearing a mask and a black jacket, with pimples visible on the portion of his face showed him a knife. He identified that person as the 1st Appellant. 11. Regarding the 2nd Appellant, PW3 testified that he wore a “marvin” on his head but that his face was uncovered. He stated that he saw the 2nd Appellant's face as he tied him up and subsequently when he returned briefly to obtain a rope and warned him to keep quiet. 12. PW3 stated that the 1st Appellant robbed him of an Infinix Hot 4 mobile phone and also injured his neck. He displayed the scar in court and a P3 Form was later produced in evidence. PW3 was categorical that the persons who robbed him were strangers as he had never seen them before that date. 13. **PW4, Wilson Obure Ogachi**, a chef at Alpacino Garden stated that he was asleep when he was awakened by one Alex at about 3.00 a.m who informed him that the premises had been broken into. He proceeded to the restaurant and found PW4 and Alex tied with ropes. He noticed that television sets and a computer had been stolen and observed that PW3 had sustained an injury to his neck. 14. **PW5, Abraham Lihanga**, the owner of Alpachino stated that on 13th September 2022, at about 3.00 a.m., he was informed that his premises had been robbed. He proceeded to the scene and found that five television sets, a laptop, alcoholic drinks and a DJ deck all valued at Kshs.700,000 had been stolen. He produced an inventory of the stolen items as **PMFI 7(a)** and **(b**). 15. **PW6, Alfred Namikoyi Momanyi,** stated that he found Alex and PW3 also tied up and that PW3 was bleeding from the neck. 16. **PW7, No. 56785 CPL Jared Omusugu**, the investigating officer testified that on 2nd November 2022, following information from informers, he, together with the OCS and other officers, went to Kaptembwo and arrested the 1st and 2nd appellants. He stated that the 1st Appellant mentioned Peter Cheruiyot, who was subsequently arrested. He also referred to a confession allegedly made by the 1st Appellant and to an identification parade at which PW3 identified the Appellants. He confirmed that no stolen property was recovered. 17. **PW8, Dr. Irene Adhiambo Osore** produced as **PEXH. 6**, the P3 Form relating to Paul Oigo Kidiga which showed that he had scar on the right side of the face and neck attributed to a sharp object and was assessed as harm. 18. **PW9, No. 240171 Inspector Kibet Naimutyo**, conducted the identification parades involving the appellants. The identification parade forms dated 13th November 2022 recorded that Paul Oigo Kidiga identified both Appellants. The parade form relating to James Owino Oduor was produced as **PEXHIBIT 8**, while that relating to Nicholas Mureithi Nyaga was produced as **PEXHIBIT 9.** 19. **PW10, No. 2314113 Donata Adhiambo Otieno**, Superintendent of Police, testified that she recorded a confession from the 1st Appellant, James Owino Oduor. The statement, produced as **PEXHIBIT 10,** bears the date 8th November 2022 and records that it was made at 1640 hours at the DCI Office, Salgaa, in the presence of **No. 56785 CPL Jared Omusugu**, the escorting officer. 20. PW10 testified that she asked the 1st Appellant whether he wished to have a representative present. The Appellant indicated that he did not want anybody related to him present. 21. She further testified that she explained the rules governing confessions to him before recording the statement. The statement records that the out-of-court confession rules had been read to the appellant in Kiswahili; that he elected not to have a third-party representative; that he did not wish to have an interpreter; and that he stated that he had not been subjected to coercion, duress, threats, torture or other cruel, inhuman or degrading treatment or punishment. 22. The statement further records that it took two hours to record, during which the Appellant was given 25 minutes' rest and was not deprived of food or water. PW10 testified that the 1st Appellant admitted involvement in the robbery at Ngata on the night of 13th /14th September 2022. The statement was produced as **P EXHIBIT 10.** 1. At the close of the prosecution case, the trial court delivered its ruling on the case to answer on 29th May 2024 and informed the Appellants of their right to give sworn or unsworn evidence or to remain silent. **The defence case** 1. The **1st Appellant, James Owino Oduor,** gave an unsworn statement. He stated that on 2nd November, 2022 he had intended to work as a mason but had no work. He said that he was arrested at Shabab by plain-clothed police officers and taken to Kaptembwo Police Station, where he met his co-accused. He denied committing the offence and denied confessing. He challenged the identification evidence and maintained that the CCTV footage did not connect him to the persons depicted. 2. The **2nd Appellant, Nicholas Mureithi Nyaga**, also gave an unsworn statement. He stated that on 2nd November 2022 , he was working at Rumour House in Shabab, undertaking renovation and tiling work, when he was arrested by persons who identified themselves as police officers. He challenged the identification by PW3, the CCTV evidence and the Identification Parade. He stated that no stolen property was recovered from him and questioned the absence of forensic examination of the scene. 3. By a judgment dated 29th July 2024, both Appellants were convicted and on 7th August 2024 , each was sentenced to 20 years’ imprisonment. **The Appeal** 1. The 1st Appellant’s petition of appeal is dated 21st August 2024. He challenges the conviction on the grounds of alleged contradictions in the prosecution evidence, reliance on a single identifying witness and an allegedly flawed Identification Parade. The 2nd Appellant’s petition of appeal is likewise dated 21st August 2024. His grounds similarly challenge the alleged contradictions, reliance on a single identifying witness and the Identification Parade. 2. The 1st Appellant’s written submissions are dated 5th August 2025. He challenges, among other matters, the proof of violence and theft, the identification evidence, the Identification Parade and the alleged confession. The submissions are brief and largely restate the grounds of appeal in narrative form rather than developing them by reference to specific passages of the evidence or citing authority in support of the propositions advanced. 3. The 2nd Appellant’s written submissions challenge the proof of violence and theft, identification, the Identification Parade and reliance upon the alleged confession of his co-accused. He also raises the issue of application of Section 333(2) of the Criminal Procedure Code. 4. The Respondent opposes the appeals through its written submissions dated 29th October 2025. The Respondent submitted that the conviction and sentence were supported by the evidence adduced at the trial, including the identification evidence, CCTV footage, medical evidence, Identification Parade and the confession by the 1st Appellant. **Analysis and Determination** 1. As a first appellate court, this court is required to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. In ***Okeno v Republic [1972] EA 32*** at 36, the East Africa Court of Appeal stated that an appellant on a first appeal is entitled to have the evidence as a whole subjected to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. 2. The first Appellate court must itself weigh conflicting evidence and draw its own conclusions; it is not sufficient merely to scrutinize the evidence to determine whether there was some evidence to support the lower court's findings. In doing so, the appellate court must make allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. 3. From the evidence on record, the grounds of appeal and submissions, this Court has deduced the following broad issues for determination:- 4. **Whether the prosecution proved the ingredients of robbery with violence as charged.** 5. **Whether the Appellants were reliably identified as the persons who committed the robbery.** 6. **Whether the alleged confession by the 1st Appellant was admissible and, if admissible, whether it linked him to the offence.** 7. **Whether, upon re-evaluation of the entire evidence, the prosecution proved the case against each Appellant beyond reasonable doubt and whether the convictions and sentences should stand.** ***Whether the prosecution proved the ingredients of robbery with violence as charged***. 1. The ingredients of robbery with violence under Section 296 (2) of the Penal Code were stated by Court of Appeal in ***Oluoch v Republic [1985]KLR*** that: - ***“Robbery with violence is committed******in any of the******following circumstances****:* ***(a) The offender is armed with any dangerous and offensive weapon or instrument; or*** ***(b) The offender is in company of one or more other persons; or*** ***(c) 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.”*** 1. In this case, the particulars of the charge alleged that on the night of 13th and 14th September 2022, at Alpacino's Lounge in Rongai Sub-County, the appellants, jointly with others, while armed with crude weapons namely metal bars and axes, robbed Paul Oigo Kidiga of four flat-screen televisions, a laptop, a DJ mixer, assorted kitchen utensils, alcoholic drinks and three mobile phones, all valued at Kshs. 760,000, and at the time of the robbery used personal violence against him. 2. In his submissions, the 1st Appellant challenged the prosecution's proof of the ingredients of the offence. He contended that the weapons referred to in the charge were not produced as exhibits and that the first report referred only to a knife. He therefore argued that the evidence of violence was insufficient. He also questioned the proof of theft on the basis that no receipts for the allegedly stolen items were produced. 3. The 2nd Appellant raised substantially similar complaints. He submitted that the evidence did not establish violence because the metal bars and axes referred to in the charge were not produced in court. He further contended that the alleged theft was not proved because the prosecution did not produce receipts for the items said to have been stolen. 4. The Respondent opposed those arguments and maintained that the evidence of the ten witnesses, the CCTV footage, the photographs, the medical evidence and the other exhibits established the robbery and the violence inflicted upon PW3. It specifically relied upon the evidence that PW3 sustained a cut wound to his neck and upon the P3 report as confirmation of the injury. 5. This Court has considered those submissions against the evidence on record. The fact that the particular weapons alleged in the charge were not recovered or produced does not, without more, determine whether violence accompanied the robbery. The Prosecution case was not dependent solely upon production of the alleged weapons. PW3 gave direct evidence that during the robbery, a knife was placed at his neck and that he was tied up. 6. His evidence concerning the injury was materially supported by the medical evidence. PW4 found PW3 bleeding from a cut wound, while PW8, the clinical officer, examined him and confirmed the neck injury and completed the P3 form. The Investigation Report also recorded that PW3 sustained a slight injury to the neck after a knife was used against him. The absence of the physical weapon therefore does not negate the evidence of violence. 7. The evidence further establishes that property was taken from the premises during the incident. PW3 gave evidence concerning the property taken, while the evidence of PW4, PW5 and PW6 placed the robbery at the premises during the material night. The CCTV footage was also produced and demonstrated activity at the premises consistent with the occurrence of the robbery. The absence of receipts for every item alleged to have been stolen does not, by itself, render the evidence of the occurrence of the robbery incapable of proof. 8. From the foregoing, this Court finds that the prosecution proved the ingredients of the offence beyond reasonable doubt that a robbery occurred at Alpacino's Lounge and that personal violence was used against PW3 during the said robbery. ***Whether the Appellants were reliably identified as the persons who committed the robbery.*** 1. The Appellants were strangers to PW3, and the case therefore is that of identification rather than recognition. The robbery occurred at about 1.00 a.m., when three men entered PW3’s cubicle. PW3 testified that there was electricity light within the cubicle and that he was able to observe the assailants. He attributed the assault upon him to the 1st Appellant whom he described as wearing a black jacket and a mask, with pimples visible on the exposed portion of his face. 2. In respect of the 2nd Appellant, PW3 stated that he wore a marvin but that his face was uncovered, and that he saw him while he was tying him up and when he subsequently returned for a rope. 3. In his submissions dated 5th August 2025, the 1st Appellant challenged the reliability of that identification and the subsequent Identification Parade. He contended that the CCTV footage did not identify him and questioned the circumstances in which the Identification Parade was conducted. 4. He also raised the issue of absence of a prior description and the circumstances in which his photograph was taken. The 2nd Appellant similarly challenged the identification evidence and the identification parade, maintaining that the prosecution had not established a reliable connection between him and the persons who committed the robbery. 5. In submissions dated 29th October 2025, the Respondent maintained that PW3 had sufficient opportunity to observe the assailants and that his subsequent identification of the Appellants at the Identification Parades confirmed the identity of the persons he had seen during the robbery. The Respondent submitted that the cubicle was sufficiently illuminated and that PW3 interacted with the assailants at close range. 6. The principles applicable to identification evidence are well settled. In ***R v Turnbull (1977) 2 QB 224***, the Court underscored the need to examine the circumstances in which an identifying witness observed the accused, including the length of the observation, the distance between the witness and the person observed, the lighting, whether anything obstructed the witness’s view, whether the person was previously known to the witness and the interval between the observation and the subsequent identification. 7. In [***Wamunga v Republic [1989] KECA 47 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1989/47/eng%401989-06-22), the Court of Appeal similarly warned of the danger of relying on visual identification and emphasised the need to satisfy the court that the circumstances of identification were favourable and free from the possibility of error. These principles assume particular importance where the identification is of strangers and is made at night. 8. The Respondent's reliance on [***Anjononi & 2 others v Republic [1980] KECA 23 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1980/23/eng%401980-01-08) on identification is equally pertinent to the extent that the evidence of a single identifying witness may, in an appropriate case, found a conviction. 9. The issue, nevertheless, is not the number of witnesses but the quality and reliability of the identification evidence. As was recognised in [***Simiyu & another v Republic [2006] KECA 354 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2006/354/eng%402006-03-31)***,*** evidence of identification arising from a night-time encounter must be approached with caution, while [***Ntelejo Lokwam v Republic [2006] KEHC 573 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2006/573/eng%402006-11-14)underscores the relevance of the description given by a witness before a suspect is subsequently identified. 10. This Court has considered the evidence of PW3 in that light. Although he stated that there was electricity light, the evidence does not sufficiently disclose its intensity, position or the distance from which he observed each assailant. 11. Those factors have a bearing as to whether the witness had a sufficiently clear opportunity to see and retain the features of a person whom he had never previously known. 12. To underscore the caution the Court must take, the Court of Appeal in ***Maitanyi -vs- Republic (1986) KLR 198***, had this to say:- ***“The strange fact is that many witnesses do not properly identify another person even in daylight... It is at least essential to ascertain the nature of light available. What sort of light, its size and it position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are unknown because they were not inquired into....' See Wanjohi & Others -vs- Republic (1989) KLR 415.”*** 1. In the present case, the encounter occurred in the course of a violent robbery in which PW3 testified that a knife was placed at his neck. The circumstances were therefore inherently stressful and required the Court to exercise particular caution before accepting the identification as free from the possibility of error. 2. The difficulty is more pronounced in respect of the 1st Appellant. PW3 stated that his face was partly concealed by a mask and that he observed pimples on the exposed portion of the face. Yet no prior description of that feature was given to the police before the appellant was placed on the identification parade. 3. Whereas the absence of a prior description by itself is not fatal to the prosecution case, description is nevertheless a material circumstance to be considered when determining whether the subsequent identification was based upon a reliable recollection of the person seen during the robbery. In the circumstances of this case, the failure to record the alleged facial feature before the Appellant was subsequently presented for identification diminishes the weight that can safely be attached to it. 4. The circumstances relating to the 2nd Appellant present a somewhat stronger opportunity for observation. PW3 stated that his face was uncovered and that he observed him while he was tying him up. He further stated that the Appellant returned for a rope. These were opportunities for observation extending beyond a fleeting encounter. 5. This Court has nevertheless to consider that evidence against the fact that the Appellant was a stranger, that the observations were made at about 1.00 a.m. during a violent robbery, and that no prior description of him was given before the Identification Parade. The evidence does not sufficiently establish the quality of the lighting or the precise distance and duration of the observations so as to remove the possibility of error. 6. Further, this Court has also considered the Identification Parade evidence. PW9’s evidence was that PW3 identified the 1st Appellant and that the Appellant accepted and signed the parade form. In respect of the 2nd Appellant, PW9’s evidence was that he declined the first parade, following which a second group was sourced and PW3 identified him twice by touching him. The Respondent submitted that the parades were properly conducted and that there was no evidence of interference or improper influence. 7. A subsequent Identification Parade is undoubtedly relevant, but it cannot be treated as independent proof that the person identified was the offender. Its probative value depends upon the reliability of the witness's original observation. 8. A parade may test a witness's recollection, but it cannot retrospectively improve circumstances in which the witness had an inadequate opportunity to observe a stranger. 9. In the present case, therefore, the fact that PW3 subsequently identified both Appellants must be weighed against the conditions under which he first encountered them. 10. The CCTV evidence does not provide the necessary independent assurance. PW2 and PW1 were unable to identify either of the two Appellants from the footage. The Respondent's position was that the CCTV evidence principally corroborated the occurrence of the robbery rather than identified the perpetrators. That line of submission is accepted to that extent. The footage supports the occurrence of the incident, but it does not independently place the Appellant among the persons captured committing the robbery. 11. The evidence concerning the arrest of the Appellants following information from informers does not materially advance the Prosecution case on identification. No stolen property was recovered from either of the two Appellants, and no independent forensic evidence was produced linking either of them to the scene. The circumstances of their arrest may explain how they came to be suspects, but they do not, without more, establish that they were the persons who committed the robbery. 12. This Court is alive to the Respondent’s submission based on the case of ***Anjononi (***supra***)*** that a conviction may safely rest on the evidence of a single identifying witness. The issue then is whether in the particular circumstances of this case, PW3’s evidence is sufficiently reliable to sustain such a conviction. This Court is required to examine the circumstances of observation as a whole and to be satisfied that the possibility of mistaken identification has been excluded. 13. Upon that examination, this Court is not so satisfied, reason being that in respect of the 1st Appellant, his face was partly concealed by a mask; the alleged facial feature relied upon was not contained in any prior description; and the evidence does not sufficiently establish the quality of the lighting or the distance from which he was observed. 14. In respect of the 2nd Appellant, the circumstances may appear more favourable as his face was said to be uncovered hence PW3 had an opportunity to see him. However, the identification by PW3 nevertheless remained an identification of a stranger; was made during a violent night-time encounter and was not supported by a prior description or independent identification from the CCTV footage. 15. In the circumstances of this case where the burden remained on the Prosecution to prove its case beyond any reasonable doubt, this Court finds that the evidence on identification of the Appellants herein is not free from a possibility of error. 16. From the foregoing, this Court finds that the evidence tendered by the Prosecution did not establish beyond reasonable doubt that either James Owino Oduor or Nicholas Mureithi Nyaga, whether individually or jointly, was among the persons who committed the robbery. ***Whether the alleged confession by the 1st Appellant was admissible and, if admissible, whether it linked him to the offence.*** 1. The Appellant challenged the admission of the confession statement made by him on 8th November 2022 and recorded by PW10, Donatar Adhiambo Otieno. This Court has reconsidered the statement together with the evidence concerning the circumstances in which it was recorded. 2. Section 25 of the Evidence Act defines a confession as words or conduct, or a combination thereof, from which, whether taken alone or together with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence. 3. Further, Section 25A (1) of the Act places a specific limitation on the admissibility of an out-of-court confession or admission tending to prove guilt, requiring, where the confession is made before a police officer, that it be made before an officer other than the investigating officer and of the prescribed rank, and in the presence of a third party of the accused person's choice. 4. The Evidence (Out of Court Confessions) Rules, 2009 prescribe the safeguards to be observed in the recording of such a confession. Of particular relevance is Rule 4(3), which requires the recording officer to ask the accused person to nominate a third party who shall be present during the duration of the confession session. 5. The requirement is part of the safeguards intended to protect an accused person in the process of making an admission which may subsequently be used as evidence against him. 6. In the present case, the confession statement records that the Appellant understood Kiswahili and did not require an interpreter. In relation to the third party, the statement contains an entry showing that the appellant was asked whether he wished to have a third-party representative and that he answered in the negative. 7. Though in its judgment, the trial court heavily relied on the 1st Appellant’s confession statement to argue that it was obtained by a qualified Police officer, and that there was no clue of bias , coercion , force or hate exhibited, this Court notes that the said statement does not show that the Appellant was first informed that he had a right to have a third party of his choice present during the confession session. It does not also indicate that the nature and effect of that right were explained to him before he was asked whether he wished to have such a representative. 8. In [***Omondi & another v Republic [2023] KECA 576 (KLR*)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/576/eng%402023-05-12),the Court of Appeal considered the admissibility of a confession in circumstances where there was no evidence that the accused had been informed of his right to have a third party present. The Court held that the confession could not pass the mandatory requirements of section 25A (1) of the Evidence Act and was consequently inadmissible. 9. Applying that principle to the present appeal, the mere recording of the Appellant's negative response to the question as to whether he wished to have a third-party representative does not, in itself, establish that he was aware of the statutory right which he was being asked to waive. 10. A waiver of such a safeguard can only be meaningful where the record demonstrates that the accused understood the right available to him and nevertheless chose not to exercise it. The statement before this Court contains no such indication, and the prosecution evidence does not otherwise demonstrate that the right was explained to the Appellant before the confession was taken. 11. In those circumstances, this Court finds that the Prosecution did not establish compliance with the third-party requirement under Section 25A (1) of the Evidence Act. 12. The confession statement made by the 1st Appellant on 8th November 2022 was therefore inadmissible and ought not to have been admitted or relied upon by the trial court. Accordingly, the third issue is determined in favour of the 1st Appellant. ***Whether, upon re-evaluation of the entire evidence, the prosecution proved the case against each Appellant beyond reasonable doubt and whether the convictions and sentences should stand.*** 1. This Court has already found that, although it was proved that a robbery accompanied by violence actually occurred, the Respondent did not prove beyond reasonable doubt that either of the two Appellants participated in it. The evidence therefore falls short of the standard required to sustain a conviction in a criminal case . 2. Consequently, the Appellants’ conviction is unsafe and therefore , the sentence imposed upon them cannot stand. 3. In conclusion, this Court makes the following Orders:- 4. **The Appellants ‘ appeals are allowed.** 5. **The convictions herein quashed.** 6. **The sentence of 20 years' imprisonment imposed upon each of them is set aside.** 7. **The Appellants shall be released forthwith unless otherwise lawfully held.** **Dated and signed at Nairobi this 11th Day of September , 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 14th Day of September, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**