https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10570

Simiyu v Republic (Criminal Appeal E131 of 2024) [2026] KEHC 10570 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10570 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E131 of 2024 REA Ougo, J July 9, 2026 Between Janet Nafula Simiyu Appellant and Republic Respondent Judgment 1.Janet Nafula Simiyu, the Appellant herein was charged with the offence of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The Particulars of the charge was that the Appellant on the 9th day of September, 2021 at about 2030hrs at Ndengelwa village in Bungoma County, jointly with others not before Court robbed Allan Wafula Wanyonyi of mobile phone make Tecno Camon 11 valued at Kshs. 14,000/= and Kshs. 60,000/= from his Mpesa account and at the time of such robbery wounded the said Allan Wafula Wanyonyi. 2.The Appellant pleaded not guilty to the said charges and the case proceeded to full trial. The prosecution called a total of five witnesses who testified in support of the Prosecution’s case whereas the Appellant gave unsworn testimony in her defence. 3.In a judgment delivered on the 26/09/2024, the trial Court found the Appellant guilty and sentenced her to death. 4.Aggrieved by the said decision, the Appellant filed her Petition of Appeal dated 11th day of October, 2024 and later Amended on the 4th day of July, 2025. The Amended Petition of Appeal raised seven grounds of Appeal as follows;a.That the Learned Trial Magistrate erred by convicting the Appellant on the charge of robbery with violence contrary to the evidence adduced.b.That the Learned Trial Judge erred in law and fact in meeting a harsh and excessive sentence.c.That the Learned Trial Magistrate erred in law and fact in finding the prosecution had proved its case beyond reasonable doubt.d.That the learned Trial Magistrate erred in law and fact by finding a conviction despite contradicting evidence of prosecution witnesses.e.That the Learned Trial Magistrate erred in law and fact by relying on the evidence of the Complainant which was unbelievable.f.That the Learned Trial Magistrate erred in law and fact by finding the prosecution had proved the elements of the offence of robbery with violence.g.That the Learned Trial Magistrate erred in law and fact by ignoring the Appellants defence in entirety. 5.After the Appeal was lodged, the Appellant was granted leave to adduce additional evidence following a formal application. The Appellant gave evidence as AW 1. She testified that she was assaulted by the Complainant on the material night during a domestic dispute. She produced a P3 form dated 24/09/2021, which indicated that she was assaulted by someone known to her. She also gave evidence that she was unable to obtain the same earlier, as a result of her arrest. 6.The Appellant also called Mary Nekesa Simiyu as AW 2, who testified that the Appellant was her daughter, whereas the Complainant frequented her hotel at Bukembe Market before he began cohabiting with the Appellant at his home in Ndelegwa. She further testified that on the material day, at around 10:00 pm, the Complainant called to inform her that he had had a domestic fight with the Appellant, after which the Appellant was arrested and taken to Bungoma Police Station. The quarrel was said to have arisen because the Complainant suspected that the Appellant’s pregnancy was not his. 7.The Appeal was thereafter canvassed by way of written submissions. Appellant’s Submissions 8.The Appellant filed written submissions dated 27th March, 2026. It was the Appellant's submission that the Prosecution failed to prove its case beyond reasonable doubt, warranting a conviction, in light of the inconsistencies in the Prosecution witnesses' testimonies. 9.It was her submission that the testimony of PW 1 was unbelievable on the grounds that the Appellant would not have known that the Complainant had money if they had only met on the material date, and that the two men allegedly who came to commit the robbery had no weapons but found the said bottles in the Complainant's house. 10.It was her further submission that the prosecution failed to establish a link between the recipient, Emily Situma, to whom the Kshs. 60,000/= was sent, and the Appellant. She relied on the case of Peter Kyalo v Republic [2018] eKLR. Further, the investigating officer's failure to follow up on the recipient of the said sum was adverse to the prosecution's case, and she relied on the case of Sahali Omar v Republic [2017] eKLR. 11.The Appellant further relied on Oluoch v Republic 1985 KLR to define robbery with violence and argued that the evaluation of the evidence does not support a charge of robbery with violence. 12.It was also the Appellants’ submission that the trial Magistrate completely ignored the Appellant’s testimony that the complainant was her lover, that the complainant’s version of events was more logical and believable, and that the trial Court meted out a harsh sentence in the circumstances. It was their prayer, therefore, that she ought to be acquitted. 13.The Respondent filed their written submission dated 25th March, 2026. The Respondent conceded to the appeal on the grounds that the contradictions and discrepancies in the evidence by the Prosecution witnesses are apparent and that there was an absence of material evidence. Analysis And Determination 14.As this is a first appeal, this Court is duty-bound to re-evaluate the evidence and findings of the trial court and arrive at its own independent conclusion, as was stipulated in the case of Okeno v Republic [1972] EA 32. 15.The issue in this appeal is the contention that the prosecution failed to discharge the burden of proof beyond reasonable doubt to secure a conviction on the charges brought against the Appellant. 16.The Appellant was charged with the offence of Robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. PW1 testified that on 9/9/2021, the Appellant called PW1, went to his house, and was welcomed. PW1 thereafter went to bathe outside, while the Appellant sat in his house. He heard the Appellant talking to other people on the phone. When he returned, he found two men who started harassing him and beat him up with bottles, demanding money. 17.PW1 testified that the Appellant took his phone and transferred Kshs 60,000/= from a balance of Kshs 185,000/= to mobile number 0799686511 belonging to Emily Nasambu Situma. He further testified that as they tried to leave, he raised the alarm and neighbours appeared. The two men managed to flee, but the Appellant was arrested and beaten by those members, and his mobile phone, a Tecno Camon 11, was recovered from her. Police Officers thereafter came, arrested her, and took her to Ndelegwa Police post, where he made the report. He then went to Bungoma Referral Hospital for treatment. 18.PW 2, Elias Kadika, a clinical officer, testified that he examined PW1 on 10/9/2021 and found a painful, swollen genital area and a bruise on the right 2nd finger. He further testified that the probable type of weapon was blunt and produced P3 form and treatment notes. 19.PW3, Pamela Wanjala Simiyu, the Complainant’s mother, testified that she lives in the same compound as the Complainant. On the material date, at around 8:30 pm, she was in her house when she heard screams from her son’s house. She went to check and found her son screaming that he had been robbed. Many people who responded to the screams arrested the Appellant. She stated that she was further informed by the Complainant that the attackers used beer and soda bottles to assault him and transferred Kshs. 60,000/= from his phone. She further testified that she was informed that the Appellant was in the company of two men who had escaped. However, on cross-examination, she stated that she saw the two men escape and that they wore black clothes. 20.PW 4, Jafred Aswani Sasaka, testified that he is a neighbour of the Complainant. On the material date, at around 8:30pm, while watching TV, he heard screams from the Complainant's house and rushed outside, where he saw three people emerge from the Complainant's house. He further stated that they chased them but managed to arrest only the Appellant, and that they recovered a Tecno Camon 11 mobile phone belonging to the Complainant. He stated that the Complainant had bruises on his left hand and leg, and that the Complainant informed them that he had been assaulted with bottles, which he saw inside the Complainant's house. 21.PW 5 Corporal Philip Otin testified that he took over the case from Sergeant Salim Kautu. He further testified that on 10/9/2021 at around midnight, Sergeant Kautu and PC Lotipo were on patrol when they received a call from a member of the public who informed them that the Complainant had been robbed at Ndengelwe Market. The officers then visited the scene, where they found the Appellant had been arrested and the Complainant had injuries to his hand and leg. He further testified that the officers recovered a Tecno Camon 11 allegedly stolen from the Complainant, as well as broken glasses of Sprite soda and Balozi beer bottles, the broken glasses of which were produced as evidence. 22.He stated that Kshs 60,000/= was transferred from the Complainant's phone to one Emily Situma. However, during cross-examination, he stated that Emily Situma had since relocated, hence the investigating officer did not pursue her. 23.The Appellant, on the other hand, elected to give unsworn testimony. She said the Complainant was her boyfriend and that on 9/9/2021 at around 9pm she received a call from him to prepare supper for him. Upon reaching the house, she found him drunk. She further said the Complainant slapped her, began breaking beer and soda bottles, and even attempted to stab her in the tummy despite her being pregnant. She managed to open the door, after which the Complainant started screaming, prompting the Complainant’s parents and other members to respond. 24.It was her testimony that the Complainant informed them that she had stolen Kshs 60,000/= from him, prompting them to attack her. She was then escorted to Ndengelwa Police Post and later charged with the offence. 25.On the basis of the above, the trial court found that the prosecution had proved its case and convicted the accused. The accused, aggrieved by that decision, appealed to this Court. 26.As stated earlier, the main issue for determination is whether the Prosecution proved its case beyond reasonable doubt, and, if so, whether the sentence imposed was unduly harsh in the circumstances. 27.Section 295 of the Penal Code provides as follows;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. 28.In Moneni Ngumbao Mangi v. Republic, CR APP No 141 of 2005 (Mombasa) the Court stated that:“The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property”. 29.Further, section 296 (2) of the Penal Code reads;If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. 30.The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the offence as follows:i.The offender is armed with any dangerous and offensive weapon or instrument;ii.The offender is in company with one or more persons;iii.At or immediately before or immediately after the robbery, the offender uses actual violence on the victim. 31.From the above, in order to successfully prove the offence, it is necessary to first establish a simple case of robbery before moving to the aggravating circumstances. 32.Furthermore, the Court of Appeal in Ratemo v Republic [2025] KECA 2303 (KLR) stated as follows;It should however be noted that any one of the above elements, if proved, is sufficient to find a conviction. That is to say, the three elements of the offence are to be read disjunctively and not conjunctively. See Dima Denge Dima & Others v Republic [2013] eKLR.The evidence tendered by the prosecution in support of any of the ingredients aforesaid has to be cogent though. (Emphasis) 33.In this case, the Appellant was charged with stealing PW1’s/Complainant’s Tecno Camon 11 phone, valued at Kshs 14,000/=, and Kshs 60,000/= from the said phone. 34.In convicting the Appellant herein, the trial court relied on the testimony of PW1 that the Appellant met him on the same day and went to his house with sinister intent. The Court further held that this was corroborated by PW3 and PW4, who saw the Appellant in the company of two other men leaving PW1’s house, and that the Appellant was arrested while the others escaped. The Court also found that, in stealing from PW1, the Appellant sent Kshs. 60,000/= to one Emily Situma at around 8:31 pm. 35.However, upon evaluating the evidence and in light of the testimonies of AW1 and AW2 on appeal, which were not challenged, it appears that the Appellant and the Complainant were indeed in a relationship. The Complainant's account that the material date was the first time the Appellant visited him therefore appears to be false. 36.Secondly, the Complainant alleged that Kshs 60,000/= was stolen from him and, in his testimony, stated that the money was sent to one Emily Situma. Accordingly, the Prosecution had the duty to show the relationship between the Appellant and the said Emily Situma to whom the money was sent. 37.I note that the Prosecution made no attempt to establish a link between the Appellant and Emily Situma, the recipient of the funds. During cross-examination, the Investigation Officer merely stated that Emily Situma had since relocated from the area and that the Prosecution had not pursued her as a witness. 38.This was a significant flaw in the Prosecution's case. The failure to link the recipient of the funds to the Appellant casts doubt on any alleged robbery of that amount by the Appellant, and the trial court ought to have taken that into account in favour of the Appellant. 39.Thirdly, the testimony of PW3 and PW4 regarding the alleged Kshs 60,000/= is at best hearsay evidence, which is inadmissible and irrelevant. Therefore, insofar as it was alleged that the Appellant stole Kshs 60,000/= from the Complainant, I find that this was not proved beyond reasonable doubt for the reasons stated above. 40.The Appellant also challenges the conviction and sentence on the basis that she did not attack the Complainant, but that the reverse occurred, and that the inconsistencies among the prosecution witnesses ought to have been decided in her favour. In their submissions, the Prosecution concede those inconsistencies and agree that this was a case where the Appellant ought to have been acquitted. 41.As noted by both the Appellant and the Respondent in their submissions, the Complainant alleged that the Appellant, together with two others, attacked him at his house with bottles, causing injuries to his genitals. According to PW3, she saw blood on PW1’s right leg and right hand, while PW4 testified that PW1 had bruises on the left hand and leg. 42.PW2, on the other hand, testified that he received information from PW1 that his genital was painful and that he did not examine him. He stated that PW1 had a bruise on the right 2nd finger and bruising and wood on the right ankle joint. He further testified that the probable type of weapon was blunt, contrary to PW1’s testimony that he was attacked with broken bottles. Importantly, PW2 testified that he extracted information indicated in the P3 form from the outpatient card and the hospital computer, but admitted that the two did not correspond and that the treatment sheet was dated 10/04/2021, whereas the incident occurred on 9/9/2021. 43.Further, PW3 and PW4 both state that they heard screams at around 8:30pm and immediately left their respective places. However, the money alleged to have been stolen and sent to Emily Situma was sent a minute after the alleged screaming. 44.According to PW3, she went and found the Appellant already arrested and was informed that two others had escaped, but on cross-examination stated that she saw the two escape using a torch. That, in itself, is inconsistent and raises the question of whether any such thing happened. 45.PW4, on the other hand, stated that he saw the Appellant, together with two others, leave PW1’s house. He and the others chased them, caught the Appellant, arrested her, and found PW1’s phone, a Tecno Camon 11, in her possession. However, no evidence was provided to show that PW1 was the owner of the phone or that the Appellant was in possession of it. 46.Therefore, insofar as the timelines do not align and there is insufficient material evidence to prove the elements of the charge of robbery with violence, I find that the prosecution failed to prove its case to the required standard, namely beyond reasonable doubt. 47.I reiterate the words of the Court in JOO v Republic [2015] KEHC 1946 (KLR) where it was stated as follows;“However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.” 48.Consequently, the Appeal herein succeeds, and the conviction and sentence of the trial Court are hereby set aside. The Appellant shall forthwith be at liberty unless otherwise lawfully detained. SIGNED, DATED, AND DELIVERED VIRTUALLY ON THIS 9TH DAY OF JULY 2026.R.E. OUGOJUDGEIn the presence of:Janet Nafula Simiyu /AppellantMiss Matere = For the RespondentMiss Lunani -For the AppellantWilkister/ Minah - C/A