https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6692

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARALAL** **CRIMINAL APPEAL NO. E002 OF 2025** **JAMES SAIDIMU……………………………..……………….APPELLANT** **VERSUS** **REPUBLIC…………………………………………………...RESPONDENT** **(Being an Appeal against the conviction and sentence by Hon. T.A Sitati delivered on 23rd April 2025 in Maralal SPMCCRC No. E008 of 2024)** **JUDGEMENT** 1. The Appellant was charged with the offence of robbery with violence contrary to section 295 as read with 296(2) of the penal Code. The particulars of the offence were that on 10th January 2024 at around 2300 hours at Veteran Club Maralal town in Samburu Central Sub County, robbed George Mburu Njoroge of Kshs. 5,000/- and immediately before or after the time of such robbery, used actual violence. 2. The Appellant pleaded not guilty and the matter proceeded for full trial during which the prosecution called two witnesses. At the close of the prosecutions’ case, the trial court found the appellant as having a case to answer and put him on his defence. He then gave unsworn testimony and called no witnesses in his defence. By the judgement delivered on 7th April 2025, the Appellant was convicted and upon considering his mitigation, the Appellant was sentenced to death on 23rd April 2025. 3. Dissatisfied with the decision, the Appellant filed this Appeal vide a Petition of Appeal dated 29th April 2025. The appeal is premised on the following grounds; 4. **That the trial court erred both in law and in facts by convicting the appellant, whereas all the elements of Robbery with Violence were not conclusively proved.** 5. **That the trial court erred in matters of law by convicting on inadequate evidence.** 6. **That the trial court erred in matters of law and fact by failing to note that the prosecution case was not proved beyond all shadow of doubts.** 7. **That by merits of the case and other emerging jurisprudence, the death sentence is harsh and inappropriate under the circumstances of the case.** 8. The Appeal was prosecuted by way of written submissions. The Appellant filed his submissions on 14th October 2025 whereas the Respondent filed submissions on 17th September 2025. **Appellants’ Submissions** 1. The Appellant opened his submissions by listing Amended Grounds of Appeal in accordance with section 350(2)(v) of the Criminal Procedure code to wit; 2. ***That, the learned trial magistrate erred in both law and fact by convicting the appellant in the present case yet failed to find that the charge sheet was duplicitous and thus prejudiced the appellant.*** 3. ***That, the learned trial magistrate erred in both law and fact by convicting the appellant in the present case yet failed to find that the appellant’s identification was not positive.*** 4. ***That, the learned trial magistrate erred in both law and fact by failing to find that the prosecution failed to discharge their duty of disclosure.*** 5. ***That, the learned trial magistrate erred in both law and fact by convicting the appellant in the present case yet failed to find that he was not informed of his right to legal representation or provided with an advocate at the state’s cost yet he was facing a capital offence whose ultimate sentence is death.*** 6. ***That, the sentence imposed is both harsh and excessive and did not take into consideration the appellant’s mitigation and the unique circumstances of the case.*** 7. No leave was sought to amend the grounds as envisaged in law but since the Respondent addressed the said grounds without objection and noting that the Appellant was a *pro se* litigant who by virtue of his ignorance of the law should enjoy a wider latitude in the courts enforcement of procedure, I deem the grounds properly filed. 8. The Appellant, under the head of duplicitous charge, urged that the charge sheet was defective for duplicity which resulted in a miscarriage of justice. That he challenges the legality of a charge sheet framed under Section 295 as read with Section 296(2) of the Penal Code, arguing that such a charge is duplex, defective, and unconstitutional, thereby prejudicing the accused’s right to a fair trial. The appellant submitted that the issue for determination is whether combining the two provisions creates duplicity in the charge and whether such duplicity vitiates the proceedings. 9. Counsel cited Section 295 on the definition of Robbery and Section 296(2) on Aggravated Robbery (Robbery with Violence) which provisions he reproduced. He submitted that under Article 50(2)(b) of the Constitution and Section 134 of the Criminal Procedure Code, an accused person must be informed of the charge with sufficient clarity to understand the case against him. That Section 295 creates the simple offence of robbery, while Section 296(2) creates the distinct offence of robbery with violence, which is not merely robbery but an aggravated form carrying a mandatory death penalty. He maintained that a charge “under Section 295 as read with Section 296(2)” creates duplication because it combines two offences with different ingredients and penalties, thereby rendering the charge uncertain, ambiguous, and prejudicial. 10. The Appellant cited Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, and additionally cited the case of Simon Materu Munialu v Republic [2007] eKLR (Court of Appeal), Peter Ochieng v Republic [1985] eKLR and Paul Katana Njuguna v Republic [2016] eKLR. He urged that the accused was exposed to two distinct offences simultaneously in one charge which prejudiced the appellant’s right to: Understand the exact charge, contrary to Article 50(2)(b); Prepare a proper defence, contrary to Article 50(2)(c); and A fair trial, contrary to Article 25(c). 11. The Appellant urged the court to declare that a charge under Section 295 as read with Section 296(2) of the Penal Code is duplex, unconstitutional, and invalid. Further, that it quashes the conviction and sets aside the sentence based on the defective charge. 12. On the ground of identification, the Appellant submitted that the conviction herein was unsafe as the evidence adduced by PW1, PW2, and PW4 was riddled with inconsistencies, omissions, and contradictions, particularly regarding the lighting conditions, failure to produce CCTV footage, and the absence of an identification parade. 13. The Appellant cited Article 50(2)(a) of the Constitution of Kenya, and Section 107(1) of the Evidence Act, on presumption of innocence and burden of proof. Further, he submitted that the evidence by PW1 and PW2 on the lighting conditions at the scene was materially contradictory. He reproduced their testimonies in this regard and urged that the inconsistencies raise serious doubt about the witnesses’ ability to make a reliable identification at 11:00 p.m. Further, that it is settled law that where conditions for positive identification are difficult, such as darkness or stress, the court must exercise the greatest caution before acting on such evidence. He cited Wamunga v Republic [1989] KLR 424 and R v Turnbull & Others [1976] 3 All ER 549, and urged that the contradictory evidence on lighting and the witnesses’ failure to describe it in their original statements fatally weaken the purported recognition. 14. The Appellant submitted that PW1 admitted that the attack was sudden and violent; and such conditions are inconsistent with calm and deliberate observation. He cited Roria v Republic [1967] EA 583 and Nzaro v Republic [1991] KAR 212, on identification in circumstances of fear, stress, or shock and urged that the purported recognition of the appellant under such conditions cannot be deemed credible. 15. The Appellant submitted that the omission to conduct an identification parade was a gross procedural error. That the fact that the complainant named the Appellant did not excuse the duty to verify and confirm identification through an identification parade, especially since the offence occurred at night under disputed lighting conditions. He cited Njihia v Republic [1986] KLR 422 in this regard. 16. The Appellant reproduced the testimony of PW4 and submitted that the failure to retrieve and produce cctv footage and the admission thereof amounts to shoddy and negligent investigation. That the same would have been the best evidence to confirm or disprove the witnesses’ assertions. The failure to extract or preserve it amounts to suppression of potentially exculpatory evidence. He cited Republic v Ibrahim Otieno & Another [2019] eKLR in this regard. Further, that the Appellant further testified that he requested the police to review the CCTV footage, but they declined. This neglect deprived him of potentially exonerating material, violating his right to equality of arms, due process, and fair hearing under Articles 27 and 50 of the Constitution. 17. Under the head of violation of human rights and international fair trial standards, Counsel urged that Article 14(3)(b) and (e) of The International Covenant on Civil and Political Rights (ICCPR) guarantees every accused person the right to adequate facilities to prepare a defence and to examine the witnesses against him. Further, that the African Charter on Human and Peoples’ Rights, Article 7(1), similarly guarantees the right to be tried within a fair and impartial process. That by failing to secure and disclose critical evidence (CCTV footage) and neglecting to conduct a parade, the prosecution and investigators violated these international obligations, which under Article 2(5) and (6) of the Constitution form part of Kenyan law. 18. The Appellant further submitted that the principles of natural justice demand that every accused person must be accorded a fair opportunity to challenge the evidence against him. That the failure to test identification evidence through available safeguards constitutes unfair prejudice and vitiates the integrity of the conviction. He cited R v Stinchcombe [1991] 3 SCR 326 in this regard. 19. The Appellant urged that his right to a fair trial was violated as in addition to being denied timely legal representation, he was not furnished with witness statements, exhibits, or documentary evidence that the prosecution intended to rely upon. This failure denied him the opportunity to adequately prepare his defence and effectively challenge the prosecution’s case. He cited Article 50(2)(c), (j) and (k) of the Constitution and urged that Article 25(c) further declares that the right to a fair trial is non-derogable, meaning it cannot be limited under any circumstance. He urged that the Criminal Procedure Code (CPC) under Section 207(1) and Section 231(1) reinforces that an accused person must be fully aware of the charge and the evidence against him. Furthermore, that Section 4(a) of the Victim Protection Act and Rule 15 of the Legal Aid (General) Regulations, 2016 underscore the principle of disclosure to all parties to ensure fairness. He cited Muiruri v Republic [2008] KLR 274, Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, Joseph Ndungu Kagiri v Republic [2016] eKLR, Republic v James Kiarie Mutungei [2017] eKLR, and David Njoroge Macharia v Republic [2011] eKLR in this regard. 20. The Appellant urged that the record reflects that the trial court acknowledged the seriousness of the charges but there is no evidence on record that such representation was ever availed before the matter proceeded further. He submitted that he explicitly invoked his right to legal representation when he stated; “I am ready but I need an advocate pro-bono.” That once this request was made and the court acknowledged the seriousness of the charge, the State, through the judiciary, bore a positive obligation to ensure that counsel was immediately secured before any further proceedings. He cited David Njoroge Macharia v Republic [2011] eKLR, and urged that the Appellant’s case falls squarely within the principle stated therein, given that he faced a capital charge under Section 296(2) of the Penal Code. 21. The Appellant cited John Swaka v Director of Public Prosecutions [2020] eKLR, Patrick Kipng’eno & Another v Republic [2018] eKLR and urged that the principle of substantial injustice means that where the offence carries grave consequences (e.g., death or long imprisonment), or the accused is indigent or lacks understanding of the law, failure to provide counsel undermines justice. 22. The Appellant submitted that where a fair trial right is violated, the proceedings become a nullity, as they fail the test of procedural fairness under Article 25(c) of the Constitution, which renders the right to a fair trial non-derogable. That the failure to secure counsel before the trial proceeded constitutes a substantial miscarriage of justice, warranting either: The quashing of the conviction and setting aside of the sentence, or An order for retrial before a competent court, with proper legal representation provided. 23. On sentence, the Appellant urged that despite being a first offender, displaying remorse, and offering mitigation, the trial court imposed the death penalty without individual consideration of the Appellant’s personal circumstances, the proportionality of punishment, or the circumstances surrounding the offence. He urged the court to quash the death sentence and substitute it with a definite, lenient sentence, or the period already served in custody, in accordance with Section 333(2) of the Criminal Procedure Code. 24. The Appellant further cited Article 26(1) of the Constitution of Kenya on the right to life and submitted that the mandatory death sentence, by denying the court discretion to evaluate whether death is a proportionate punishment in individual cases, violates this constitutional safeguard. He cited Ramadhan & 8 Others v Attorney General & another [2024] KEHC 1173 (Mombasa) in this regard. He cited Article 28 and 29(f) of the Constitution and urged that the mandatory death penalty is inherently dehumanizing and disproportionate. He cited Mbugua & 9 Others v Attorney General & 3 Others [2025] KEHC 1248 (Vihiga) in this regard. 25. The Appellant urged that the principle of proportionality requires that the punishment fit both the crime and the offender. He cited Section 333(2) of the Criminal Procedure Code and urged that the Appellant has remained in custody since his arrest and has undergone the entire trial process under duress of a capital charge. He prayed the court take this period into account and placed reliance on Bethwel Wilson Kibor v Republic [2009] eKLR. **Respondents’ submissions** 1. Counsel for the state submitted that the Prosecution adduced direct and documentary evidence linking the appellant to the offence. He recollected the testimonies of the witnesses and cited section 296(2) of the Penal Code and the case of Oluoch vs Republic [1983] KLR on the ingredients of Robbery with violence. He maintained that the ingredient of Robbery with Violence was proved appropriately. That the appellant was armed with a stone and a piece of wood, was in the company of an accomplice (Joseph), and immediately before the robbery, he used actual force to steal Kshs. 5,000/- from the complainant. The prosecution relied on cogent and overwhelming evidence to prove the guilt of the appellant. 2. Counsel cited Section 296 (2) of the Penal Code on sentence and submitted that the trial court was right in convicting the appellant to the death sentence. That the penal code has not been amended by Parliament, despite the numerous precedents declaring the death sentence as inhumane. He invited the court to uphold the conviction and sentence. **Determination** 1. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See **Okeno vs. Republic [1972] E.A 32)**. 2. I note that before the matter proceeded for hearing, the Appellant requested a pro bono advocate and according to the record, the court recognised the seriousness of the offence and directed that he be allocated to a Pro-bono advocate. 3. The matter then proceeded for hearing on 16th October 2024. **PW1** was **George Mburu Njoroge** who testified that in 10th January 2024 he left his workplace in Maralal Town and went to Veterans Bar and Grill for food but found the Grill section already closed. As he stepped out to leave he received a phone call during which a man who he recognized as Saidimu slapped him. Upon enquiring the problem by asking ‘Nini mbaya?’, the man responded with violence, picked up a stone and struck him on the back of his head. He fell down into a trench and the accused caught up with him, picked a plank of wood from the market stall and struck him severally all over the body. A passer-by called Stephen came over to ask Saidimu why he was attacking him but he was also attacked and fled. 4. Saidimu then frisked him took cash kshs.5,000/= and demanded his phone. He stated that the Appellant was with an accomplice called Joseph. 5. It was his testimony that Stephen met police on patrol and alerted them and when the appellant saw Stephen and the armed police approaching, he escaped. The witness was taken to Samburu County Referral Hospital where he was admitted for 2 days. He produced his treatment notes and discharge summary and stated that his phone that went off was smashed by the thieves who abandoned it at the scene. 6. PW1 was then stood down for further recalls. Upon being recalled, he stated that the could see his black TECNO CAMON 12 in court and stated that the Appellant smashed the screen as the court could see. He was stood down then recalled, and produced the original receipt of purchase dated 22/12/2019 for Kshs. 15,500 for a Tecno Camon 12 7. During cross examination by the Appellant he stated that he recognised him and Joseph. Further that Stephen witnessed the incident. He stated that the attack was at 11pm and he was 5 metres from the bright street lights. That the lamp was affixed to the front side of the building and shone directly downwards and it gave clear lights at that spot. 8. **PW2** was **Stephen Nginyi Lemakara**, a boda-boda operator he stated that on 10/01/2024 at 11pm, while going about his boda boda work, he passed by Veterans club and Grills when he saw 2 men in a physical tussle. He recognised them and saw them from the bright security light that is positioned directly at the front entrance of the Veterans club. He recognized George as his friend and the other man was Saidimu who was a regular feature at Veterans. He stated that Saidimu struck George on the head using a stone and George fled through the entrance of Veterans club towards the market stalls. He went round to the near side and found Saidimu still accosting George. That he had pinned him down and an accomplice stood by. He sensed danger and sped off to look for police on patrol who he found outside Morris Hotel and led them back to the market stalls where they found George lying motionless. Saidimu and his accomplice fled and he then took George to the hospital. 9. During cross examination, he stated that there was a bright security lighting at the entrance of the Veterans club and he recognised the appellant instantly. 10. **PW3** was **Charles Leparmorijo**, a Clinical Officer who testified that the complainant was admitted on 10/01/2024 and was conscious and well oriented in time and space. He had 3 wounds visible on the scalp - 3cm long, 2cm deep. Left eye swollen, Visual defiant on the left eye. Upper back swollen. That Blunt and sharp objects were probable weapons. He produced the P3 form and Discharge summary and stated that the injury was grievous harm due to the visual impairment on the left eye. 11. **PW4** was **Police Constable Simon John Nzui** who was the investigating officer. He testified that on 11th January 2024, he received a report of an alleged assault and visited the victim in hospital where he narrated the events to him. Further, that the accused was identified by PW1 and PW2 but denied involvement in the robbery, claiming to have been the victim. The witness produced the phone that was smashed at the scene as PEX-4. 12. **DW1** was the Appellant who gave unsworn testimony. He denied having committed the offence and stated that he was not aware why he was arrested at the time of the arrest. He further stated that he asked the police to review the CCTV of Veteran’s club which they declined. He further stated that he pleaded with the investigator to conduct an identification parade which they declined and therefore he was not positively identified by any witness. 13. The issues that arise for determination are the following; 14. **Whether the Appellants’ right to a fair trial was violated** 15. **Whether the charge was duplex** 16. **Whether the offence of robbery with violence was proved beyond reasonable doubt** 17. **Whether the sentence was harsh or excessive in the circumstances** **Whether the Appellants’ Right to a Fair Trial was violated** 1. The Appellant contended that his right to a fair trial was violated as he was not afforded legal representation despite the court acknowledging the seriousness of the charge. In the case of **R v Chengo & 2 Others (Petition No. 5 of 2015) [2017] KESC (15) (KLR)**, the Supreme Court stated as follows concerning legal representation; **“We are thus in agreement with Mr. Ole Kina, that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more. We must however emphasize the fact that in accordance with the language of the Constitution, this particular right is not open-ended. It only becomes available “if substantial injustice would otherwise result”.** 1. Similarly, in the case of **David Macharia Njoroge v R, [2011]** the Court of Appeal considered the applicability of Article 50 of the Constitution and held: **“State-funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense. Substantial injustice is not defined under the *Constitution*, however, provisions of international conventions that Kenya is a signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where “substantial injustice” would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.”** 1. Having considered the record of the court, the Appellant was able to participate in the hearing and cross examined the witnesses. He appeared to be aware of the charge he was facing and further, has not demonstrated whether there was substantial injustice, or prejudice by his lack of legal representation. 2. It is trite that the right to legal representation at State expense is now constitutionally anchored under Article 50(2)(h) of the Constitution of Kenya, 2010 which provides that every accused person has the right “to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” 3. The right, however, is not absolute or automatic in every criminal trial. The constitutional threshold is whether substantial injustice would result if legal representation is not provided. 4. The Supreme Court in David Njoroge Macharia v Republic recognised that the right under Article 50(2)(h) is progressive and dependent on the circumstances of each case. The court held that State-funded legal representation is not available as of right in all criminal proceedings and that the determination turns on factors such as the seriousness of the offence, the severity of the sentence, the complexity of the case, and the ability of the accused person to conduct his own defence. 5. The court stated that substantial injustice is likely to arise where an accused faces a grave charge carrying severe punishment, where the matter is legally or factually complex, where the accused is vulnerable or unable to adequately defend himself, or where public interest demands legal representation. The Supreme Court further observed that the State is entitled to progressively realise the right taking into account available resources and institutional capacity. 6. Similarly, the Court of Appeal in Karisa Chengo & 2 Others v Republic reiterated that the right to State-funded counsel is not automatic merely because an accused person is charged with a serious offence. The court emphasised that the trial court must consider whether failure to provide counsel would occasion substantial injustice in the particular circumstances of the case. 7. In Republic v Karisa Chengo & 2 Others, the High Court observed that relevant considerations include the literacy of the accused, the complexity of the evidence, the nature of the charge, the seriousness of the sentence likely to be imposed, and the accused’s capacity to effectively participate in the proceedings. The court underscored that Article 50(2)(h) does not impose an unqualified duty upon the State to provide advocates in every criminal matter. 8. The Legal Aid Act, No. 6 of 2016 was enacted to operationalise Article 50(2)(h). Under the Act, legal aid is prioritised in deserving cases, particularly capital offences, vulnerable persons, children, and indigent accused persons. The statutory framework therefore reinforces the constitutional position that assignment of counsel at State expense depends upon the likelihood of substantial injustice and the availability of legal aid mechanisms. 9. Accordingly, while the Constitution guarantees the right to a fair trial and recognises legal representation at State expense as an important component of that right, the entitlement is conditional rather than absolute. The court must in each case determine whether denial of counsel would occasion substantial injustice, having regard to the nature of the offence, complexity of the matter, severity of the sentence, vulnerability of the accused, and the broader interests of justice. 10. Top of Form 11. Bottom of Form 12. From the foregoing, the Appellant trial is not vitiated by the failure to accord him legal representation and the ground of appeal fails. 13. The Appellant contended that the charge sheet was duplicitous and as such, the same was prejudicial to his case. He particularly urged that section 295 on robbery with violence and 296(2) on aggravated robbery with violence create two distinct offences and as such there are different ingredients and penalties rendering the charge uncertain. 14. The rule against duplicity is premised on provisions of section 134 of the Criminal Procedure Code which provides as follows: **“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the Appellant person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”** 1. A duplex charge is one which charges more than one offence in the same count. In **Paul Katana Njuguna v Republic [2016] eKLR**the Court of Appeal **c**onsidered the issue of duplicity where the appellant had been charged with the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code. The Court observed as follows; ***“Having considered the law on duplicity as it has evolved, can we say that the charge as framed in the appeal before us was so defective as to have occasioned a failure of justice? Can it be said with any certainty that the said defect is incurable under Section 382 of the Penal Code? We observe that the offence under Sections 295 and 296 (2) were not framed in the alternative. So, following the decision in Cherere s/o Gakuli -v- R (supra) Laban Koti -v- R. (supra) and Dickson Muchino Mahero v R. (supra), the defect in the charge herein is not necessarily fatal."*** 1. Considering the same issue in **Justine Masolo Nyakundi V Republic (2019) KECA 349 (KLR),** the Court of Appeal considered whether as framed at the trial , the charges against the appellant therein were duplex and occasioned him prejudice. In concluding , the Court of Appeal stated: ***“We are therefore in entire agreement with the learned Judge who properly addressed the issue as follows:*** ***“The particulars of the robbery were in consonance with the offence of robbery with violence. He set up a defence against the charge of robbery with violence. The evidence adduced by the prosecution sought to prove only one offence, of robbery with violence. Although it is trite that duplicity is a question relating to the count and not the underlying evidence it is clear that the case put forth by the prosecution was one of robbery with violence and the Appellant was clear as to the charge he faced. Both the charge and the evidence adduced did not represent any uncertainty as to the offence the Appellant was charged with. Thus, no injustice was occasioned by the duplicity in the charge.”*** 1. From the record, it is evident that the Appellant was well aware of the charge he was facing from the cross examination and from his testimony. The Appellant has not demonstrated that he was prejudiced by the framing of the charges and therefore, it is my considered view that this ground of the Appeal fails in its entirety. 2. On whether the charge was proved to the required degree, the ingredients of the offence are set out in sections 295 and 296 of the Penal Code as follows; ***“295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.*** ***296 (2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”*** 1. *In* ***Johana Ndungu vs Republic (1996) eKLR****, the Court of Appeal set out the following as the ingredients that need to be proved ;* ***“(i) if the offender is armed with any dangerous or offensive weapon or instrument; or*** ***(ii) if he is in company with one or more other person or persons; or*** ***(iii) if at or immediately before, or immediately after the time of the robbery, he wounds, beat, strikes or uses any other violence on any person”.*** ***(See also Oluoch -v- Republic (1985) KLR)*** 1. The Appellant faulted his identification on the grounds that it was night time and therefore the conditions were not suitable for a proper identification. Additionally, he faulted the prosecution for failure to produce the CCTV footage and, failure of the police to conduct an identification parade. 2. The identification of the Appellant was by way of recognition. Both PW1 and PW2 had known the Appellant for years and were able to identify him based on this. In the case of**Anjononi & Others vs. Republic (1976-80) 1 KLR 1566 at page 1568,** the Court of Appeal held that ***“................ recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends on the personal knowledge of the assailant in some form or other.”*** 1. The court in**Wamunga v. Republic (1989) KLR 424 at 426** had this to say: ***“Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”*** 1. The court of appeal summarized the applicable principles in **Joseph Muchangi Nyaga & Another -Vs- Republic (2013) eKLR**as follows:- “Evidence of visual identification should always be approached with great care and caution (See Waithaka Chege versus Republic (1979) (KLR 217). Greater care should be exercised where the conditions for favourable identification are poor. (Gikonyo Karume and Another Versus Republic (1980) KLR 23) ……before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of and the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him……” 1. When the witnesses were questioned about the lighting, they were consistent that there was bright security lighting outside of Veteran’s club and therefore, they were able to clearly see the face of the accused person. The complainant and PW2 were also able to correctly name the accused person to the police during he first report. It is trite that the evidence of a first report often brings out the truth as it is taken at a time when recollection is very fresh. **(see Abel Maina Mburu vs Republic (2021) eKLR).** 2. The evidence is clear that both PW1and PW2 recognized the Appellant at the scene of crime. The grouse by the Appellant that an identification parade was not conducted is misplaced for the simple reason that an identification parade serves no useful purpose when a suspect is already known to the witnesses. Secondly, it is not the quantity but quality of evidence that counts in support of a conviction. The complaint the Ccctv footage was not produced does not aid the Appellants cause. There was adequate evidence in support of the Appellant’s identification as the assailant of the complainant. It is therefore my considered view that the conditions for the identification of the Appellant allowed for a positive, accurate and untainted recognition of the Appellant. 3. Having established the involvement of the Appellant in the commission of the offence, the next issue is whether the ingredients of the offence of robbery with violence were proved. PW1 testified that the Appellant attacked him by first slapping him, then struck him at the back of the head with a stone. PW2 witnessed the violent attack and recognised both the accused and the complainant. The evidence of the violent nature of the attack was corroborated by the testimony of PW3 who attended to the complainant who had sustained injuries that were classified as grievous harm. The description of the injuries corroborated the evidence on the attack. Additionally, PW1 testified that the Appellant was in the company of one Joseph who was still at large. It is my considered view that the element of being armed with offensive weapons was satisfied and further, that it was also proved that violence was used during the commission of the offence and that the was in the company of another. 4. The complainant testified that the Appellant had demanded his phone and when the phone died before he could enter his PIN, the appellant smashed it on the ground. This evidence was corroborated by the production of the TECNO CAMON 12 with a smashed screen as evidence. Whereas the Appellant was not found in possession of the same, there is circumstantial evidence linking him to the robbery of the complainant. 5. Having considered the evidence adduced, I am satisfied that the prosecution proved all the ingredients of the offence to the required degree. The conviction was safe. 6. As regards the sentence, the parameters within which an appellate court can interfere with the exercise of discretion by a trial court in sentencing are now well settled. In the case of **Shadrack Kipkoech Kogo vs R, Eldoret Criminal Appeal No.253 of 2003** the Court of Appeal stated thus:- ***“ Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R. (1989 KLR 306).”*** 1. These principles had long before been crystalized in the case of **Mbogo & Another v Shah (1968) 1 EA. 93** thus: - ***“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”*** 1. Section 296(2) of the Penal Code provides; **296 (2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”** 1. The prescribed sentence for the offence of robbery with violence is death. The trial court after taking in the mitigation by the Appellant and considering aggravating factors which it clearly enumerated sentenced the Appellant to death. 2. The Supreme court of Kenya had declared the mandatory death sentence unconstitutional in the case of **Francis Karioko Muruatetu & Another vs R (2017) eKLR**. However, the court gave directions in [**Muruatetu & Another v Republic; Katiba Institute & 4 other*s***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2021/31)**(Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions)** commonly referred to as “***Muruatetu II***”, that the same was only Applicable to Sexual Offence Cases and not murder cases. 3. Furthermore, the Supreme Court of Kenya emphasized in the case of **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)** that until a challenge to mandatory sentences is taken up before the courts all the way to the Supreme Court, such sentences are lawful and cannot be interfered with. 4. Additionally**,** in the case of **Wamwoma vs. Republic (Criminal Appeal 19 of 2018 [2024] KECA 546 (KLR)** it was stated as follows: **“*On the issue of sentence, the appellant was sentenced to the mandatory death sentence as provided for the offence of robbery with violence under Section 296(2) of the Criminal Procedure Code. The appellant contended that the sentence imposed upon him was unconstitutional. However, in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (amicus curiae) (2021) eKLR, (Muruatetu 2), the Supreme Court clarified that notwithstanding its holding in Muruatetu that the mandatory nature of the death sentence under Section 204 of the Penal Code is unconstitutional, the death sentence in regard to the offence of robbery with violence under Section 296(2) remains valid until the constitutional validity of that sentence is fully argued before the High Court and escalated to the Court of Appeal. As this is yet to be done, the sentence of death that was imposed upon the appellant remains a lawful sentence.”*** 1. I find no improper exercise of discretion by the trial court in sentencing the Appellant. No grounds are established to open the sentence to disturbance by this court. 2. The result is that the appeal lacks merit in its entirety and is dismissed. **Dated signed and delivered virtually this 15th day of May 2026** **A.K. NDUNG’U** **JUDGE**