https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6605

Jattani & another v Republic (Criminal Appeal E045 of 2025) [2026] KEHC 6605 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 6605 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E045 of 2025 FR Olel, J May 12, 2026 Between Liban Jattani 1st Appellant Gayo Liban Jattani 2nd Appellant and Republic Respondent (Being an Appeal arising from the judgment, conviction and sentence of Honourable Christine Wekesa (SPM) delivered on 14 th November 2025 in criminal case No E061 of 2023 at Principal Magistrate’s court at Marsabit) Judgment A. Introduction 1.This appeal arises from the conviction and sentencing of the appellants by Hon. Christine.M. Wekesa (SPM) in Marsabit CMCR. No. E061/2023 where she convicted the 2nd appellant of the offence of robbery with violence contrary to 295 as read with section 296(2) of the penal code and further convicted both the 1st and 2nd appellants of the offence of being in possession of a firearm without holding a firearms certificate contrary to section 4(A)(1)(a) of the firearm Act, 2024 and also for being in possession of ammunition without holding a firearms certificate contrary to section 4(1)(2) as read with section 3(a) of the firearms Act 2014. 2.The background to this appeal was that the 2nd appellant, Gayo Liban Jattani 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 are that on the 1st day of October, 2022 at Nyayo road Dakabaricha location in Marsabit town within Marsabit county, jointly with others not before court being armed with lethal weapons namely AK 47 robbed off Soso Robe of Kshs 200,000/= in cash and immediately before such robbery used actual violence on Soso Robe. 3.On count II the 2nd appellant, Gayo Liban Jattani again 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 were that on the 1st day of October,2022 at Nyayo road, Dakabaricha location in Marsabit county, jointly with others not before court, being armed with lethal weapons namely AK 47 robbed off Boba Abdi HIRBO of $1200.55Birr and immediately after such robbery caused the death of the said boba abdi hirbo. 4.On count III both appellants were charged with the offence of being in possession of a firearm without holding a firearms certificate contrary to Section 4A(1)(a) of the Firearms Act 2024. The particulars were that on the 13th day of March, 2023 at Badassa sub location in Marsabit County, without reasonable excuse were found in possession of a firearm namely AK 47 Rifle serial Number 59002927 with three magazines in circumstances which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order, without a firearm certificate. 5.On count IV both appellants were charged with the offence of being in possession of ammunition without holding a firearms certificate contrary to Section 4(1)(2) as read with section 3(a) of the firearms Act, 2014. The particulars were that on the 13th day of March, 2023 at Badassa sub location in Marsabit County, without reasonable excuse were found in possession of 62 rounds of 7.62 X 39 mm special, in circumstances which raise reasonable presumption that the said ammunition was intended to be used in a manner prejudicial to public order, without a firearm certificate 6.The prosecution called six (6) witnesses to prove their case, after which both appellants gave sworn evidence in defence and called three witnesses to support their case. The trial Magistrate did consider the evidence presented and proceeded to convict both accused persons. The 1st appellant was sentenced to serve imprisonment term of seven (7) years on count II and III, which sentence was to run concurrently, while the 2nd appellant was convicted on all counts and sentenced to suffer death as provided for in law for the offence of robbery with violence under count I and II and on count III and IV and was sentenced to serve seven (7) years imprisonment, which sentence was held in abeyance, considering the death penalty already passed. 7.The appellants upon conviction and sentence did file separate grounds of appeal, but which raised similar grounds, namely;a.That they were not accorded a fair trial.b.That the learned trial Magistrate erred in both law and fact by failing to note that the sentence was harsh and excessive in the circumstances of the case.c.That the learned trial magistrate erred in both law and fact by relying on uncorroborated and contradicting evidence tendered by the prosecution witnesses.d.That the learned trial Magistrate erred in both matters of law and facts by failing to note that the investigators of this case failed to investigate the case to the required to investigate the case to the required standard by law.e.That the learned trial magistrate erred in matters of law and fact by failing to consider their defence. B. Evidence at Trial 8.PW1 PC Timothy Okoth, of DCI -Marsabit recalled that on 13.03.2023, while at their office, they got a tip off that the 2nd appellant, who was suspected of having been involved in a robbery with violence incident was at the chief’s office, Badassa seeking to secure his national identity card. They rushed to the said office and arrested the 2nd appellant and his brother and proceeded to detain them at QRU headquarters. From the said QRU camp they proceed to the 1st appellants homestead, which was near the said camp, where they found him and after interrogation, both appellants lead them to a place next to their homestead where they recovered a jungle jacket with 30 rounds of ammunition, a camel bag which had an AK 47 Rifle, two magazines; one had 21 rounds, while the second magazine had 41 rounds of ammunition, a firearms cleaning kit and jungle belt. 9.Under cross examination PW1, confirmed that he arrested both appellant’s at Badassa chiefs camp, after which they escorted them to their home and made the other recoveries of the items aforestated.PW2 PC Francis Njuguna evidence mirrored that of PW1 and confirmed that he accompanied PW1 and other DCI officer to the appellants home, where they made recovers of the AK 47 Rifle, 2 magazines loaded with ammunition, 30 rounds of ammunition, jungle jacket, camel bag and cleaning kit. 10.PW3 Senior Superintendent Florence Karimi, from DCI headquarters confirmed that she was a qualified ballistic examiner with 15 years of experience. On 07.12.2022 they did receive various exhibits, including three (3) fired cartridge cases, one Chinese made type 561 AK 47 rifle bearing serial Number 59002927, which generally was in good mechanical condition, 3 magazines and 62 rounds of ammunition submitted by Pc Moses Liliwo from DCI Marsabit, with a request that the same be examined to confirm if it was a firearm and ammunition respectively. 11.She randomly picked 3 ammunitions, which were caliber 7.62 x 39 mm from Exhibit E1 -E62 and successfully test fired the same. From her examination she formed the opinion that the AK 47 rifle and ammunition were a firearm and ammunition respectively as defined under the firearm Act. She further subjected the 3 fired cartridge (Exhibit B1 to B3) to comparative microscopic examination in conjunction with the test cartridge she fired (Exhibit T1 to T3) and formed an opinion based on marching injector markings and firing pin in deletion markings that;a.Exhibit B1 and B3 were fired from Exhibit A (AK 47 Rifle)b.Exhibit A (AK 47 Rifle) had also been involved in another shooting/crime incidents as follows;i.A murder incident whereby the exhibit had been submitted by DCI-Marsabit vide case No CR. No 451/244/220 ref No.556 of 2020.ii.A recovery incident where exhibit had been submitted in their laboratory by DCI-Marsabit through CR. No 451/213/2021 to their laboratory under reference number 476/2021 12.PW3 produced her report dated 19.06.2023 and the items examined as Exhibits. Under cross examination, she confirmed her work did not include dusting for finger prints and also was not aware of the circumstances, under which the said rifle was recovered. 13.PW4 Soso Roba, recalled that on 01.10.2022 at about 8.00pm, he was at his shop, christened, “Sosomart junction shop”, and was reconciling his daily accounts as he prepared to close for the day. While still inside the shop, a middle-sized gentleman walked in and asked if he sold cigarettes, but he replied in the negative. Soon thereafter, a second gentleman also walked in and insisted on doing an Mpesa transaction, but he informed him that he had closed for the day and was therefore not able to assist him. As he closed his shop, he noticed a motor bike, make boxer, which was red in colour parked outside his shop and sensed danger. 14.He informed his boda boda rider, who was already waiting for him outside his shop of his intuition and noted the registration number of the 2nd boda boda, which was KMFS 028M. This he clarified was possible since he had two solar security lights installed outside his shop and one inside his shop and thus was clearly able to see the 2 persons who last came in and the said red motor cycle. As soon as they left for home, after about 30m he noticed that the 2nd motor cycle was following them, with its lights off and urged his boda boda rider to speed up, but as he did so, the other motorcyclist kept pace and when they slowed down to negotiate a corner, the 2nd motor bike caught up with them and he saw the pillion passenger draw out his gun and fired two shots at them, which caused his rider to panic and they unfortunately fell down. 15.While on the ground, one of the robbers who had the gun came and pointed the same to his head, while demanding for the money and proceeded to take Kshs 32,000/= being sales of the day, which he had placed in different pockets. The said robber further demanded and took the keys to his shop and as he resisted, the other rider, who had remined on the 2nd motorcycle fired 3 rounds of ammunition causing him to fall on his back. At that moment he heard the rider telling his colleague that, he was already dead and that they should urgently leave. 16.It was his further evidence that as the robbers were taking off, he sat up was able to see the motor cycle registration, through the brake lights and proceeded to record/type the same on his massages and made a screenshot of the same. He thereafter managed to called his wife and the area chief who helped to get him to hospital and later woke up at St Austine hospital in Meru, where he discovered that he had sustained gunshot injuries to his thighs, which fractured his tibia and fibula. PW4 positively confirmed that the person, who shot him was lean medium sized and had the exact same features as the 2nd appellant and that the said robbers were the ones who came to his shop as he was closing for the day. 17.Under cross examination PW4 confirmed that he had not seen the 1st appellant before and did not know him, but was certain that the 2nd accused robbed him as he clearly saw him at the shop, when he came to ask for cigarettes and later as he stood over him with the gun during the robbery incident. He reiterated that even though there was a blackout on the material night, his shop was well light using solar light both on the inside and outside and further that the incident had occurred near the gate of Mzee Gisse, which also had security light, that had enabled him to positively identify the 2nd appellant.PW4 also pointed out that the 2nd appellant was also later found in possession of the motorcycle, which registration he had noted on the material night and that corroborated his evidence. 18.PW5 Elizabeth Bailu confirmed that her husband owned the recovered motorcycle registration KMFS 028M` and had assigned one, Boru Wako Liban as the said motor cycle rider. Both of them were arrested on 20.10.2021 and were later released. She was not aware of the incident which occurred on 01.10.2022 and therefore could not comment on the same. 19.PW6 Dr Duba Abduba a senior medical officer based at Marsabit level 5 county and referral hospital recalled that on 01.10.2021 they received two patients who had sustained gunshot wounds in a robbery incident and were bleeding profusely. PW4 had sustained two gunshot wounds on the thigh which fractured his left tibia fibula and also had a minor injury to the left small and 4th toe. The 2nd patient was Roba Abdi Hirbo, had also sustained a bullet wound on his left lower limbs. Both patients were treated and he later filled in the P3 forms, which he produced before the court as part of his evidence. 20.PW6 PC Moses Loliwo of DCI-Marsabit, confirmed that he was assigned to investigate the robbery incident that had occurred, on the night of 01.10.2022, along Nyayo road, that lead to PW4 and his rider Boba Abdi sustaining gunshot injuries. After interviewing the concern, it was established that motorcycle registration number KMFS 028M had been used during the said robbery and they managed to trace the said motorcycle and detained it. 21.As part of his investigations, he had interviewed one Andrew Abduba, who had confessed that on 01.10.2022 at about 3.00pm he had gone to lattas shop situated at Badassa, where he met Latta Kano, the 2nd appellant and Guyo Chukri, who informed him that they had a mission they intended to carry out in Marsabit that evening, and requested him to join them, but he declined the said offer. The said persons had then proceeded to PW5, who hired out the motor cycle registration number KMFS O28M to them at a fee of Kshs 500/= and later on the same day at about 21.00hrs returned it in good order. 22.After several months, on 13th March 2023, they did receive a tipoff that the 2nd accused was at Badassa chief camp processing his national identity card, and they proceeded to the said office, where they arrested him and took him to Badassa QRU (Quick response unit) police camp for further interrogation. They proceeded to their boma, where the 1st accused lead them to a bush about 200m away inside Marsabit National Park, where they recovered one AK 47 rifle serial number 59002927, which was loaded with 30 rounds of ammunition of caliber 7.62mm X 39mm. Upon further search the also recovered a camel bag containing two other magazines loaded with 21and 11 ammunitions, a police jungle shirt, jungle belt and a cleaning kit. They recorded all these items in an inventory, which was signed by all the parties. 23.PW6 further confirmed that the persons arrested were the accused persons and that the boda boda rider, who had sustained the gunshot injury had subsequently died on 05.03.2023 due to medical complications arising from the gunshot injuries. Before he died, the said boda boda rider had recorded his statement where he confirmed that they were followed by a motor cycle registration Number KMFS 028M, whose occupants had shot at them using an AK 47 rifle and proceeded to rob them of their money and his Techno Spark 4 phone, before speed off towards Marsabit town. They had thereafter raised alarm and were taken to hospital by members of the public. 24.The prosecution applied to have the said witness statement of the deceased rider to be admitted as part of the prosecution evidence under Section 33 of the Evidence Act and the same was allowed by the trial court. Under cross examination PW6 confirmed that the 1st appellants name was not mentioned as a suspect of the robbery incident, but was caught up on the issue of being in possession of a firearm, which was recovered about 200m from his dwelling. 25.After considering all the evidence presented the trial court were placed both appellants on their defence. DW1 Liban Jattani confirmed that he was arrested at the chief’s office, where he had taken his son, the 2nd appellant to apply for an identity card. After the said arrest, the police took them to his home, where they conducted a thorough search within the house and around his compound, but did not recovery any item. He was then separated from his son and was taken to the QRS camp situated near Marsabit forest, where he was tortured, but he was adamant that he had no knowledge of any gun used to commit a crime. After sometime, they took him back to his home where they got a planted gun and told them that the said gun had been recovered from them. 26.He also pointed out that the prosecution witnesses had given different description of the said AK 47 serial number and the said discrepancy did prove that he had nothing to do with the said gun, nor was he wealth enough to buy one. DW1 further stated that he had an impeccable public record and had served as a KPR for 27 years without blemish. If indeed he was in possession of a gun, he would have kept it at the police station and not hidden it inside a fenced forested area. He instead that the said AK 47 did not belong to him and had committed no offence. 27.Under cross examination he did reiterate his evidence and insisted that the AK 47 was not recovered from him and had also never used the recovered motor cycle. DW2 Gayo Liban Jattani confirmed that he understood the charge faced and stated that PW5 had confirmed that she did not lease out the suit motor cycle to him on the material day of the robbery accident and the other witnesses had also confirmed that the recovered AK 47 rifle was not found in his possession and were not even sure if its serial number. Finally on the robbery incident, PW3 had stated that it occurred at night, when there was a blackout, which implies that it was difficult to identify the assailants. The charges against him had been fabricated and he urged the court to acquit him. 28.DW3 Halake Dida confirmed that on 13.03.2023, he was at home, where he witnessed as the police escorted both the accused to their home and assaulted them as they conducted a search therein, but did not recover any item. Similarly, DW4 Waqo Malicha confirmed that he was at the chief’s camp when the appellants were arrested and later followed them to the manyatta, where a search was conducted but nothing was recovered from the 1st appellants home.PW5 Qualla Jattani evidence also mirrored that of DW3 and DW4. C. Submissions i. Appellant’s Submissions 29.The appellant’s relied on their comprehensive written submissions dated 2nd February 2026, where they averred that the learned trial magistrate improperly shifted the burden of proof on them to prove their innocence, when they bore no obligation to do so. In particular, the learned magistrate had erred in finding that they had, “not cast doubt” on the prosecution case and therefore had proceeded to wrongly convict them, which with respect was a misdirection. Reliance was placed in the case of Sawe Vs Republic (2003) KLR 364, and Kiarie Vs Republic (1984) KLR 739, where the court of appeal held that the burden of proof never shifts and it would be a grave misdirection on the part of the trial court to convict on the basis that the accused did not give a satisfactory explanation to rebut the prosecution case. 30.On the charge faced on count III and IV, it was incumbent upon the prosecution to prove actual or constructive possession, coupled with knowledge and control of the recovered ammunition and/or gun. The evidence presented failed to prove the same, as the same were recovered in a forest or communal space, with no independent witness confirming the said recovery, or by means of scene of crime photos, and/or signed inventory by neutral parties. Possession, knowledge and control of the said firearm and ammunition was therefore not proved and again made their conviction unsafe. 31.The 2nd appellant further faulted the trial court for convicting him of the offence of robbery with violence, founded on weak visual identification evidence made at night, when there was a blackout, and without the court verifying the intensity, positioning or adequacy of the solar lights alleged to have been used to identify him. The trial magistrate should also have warned herself of the danger of relying on such unsubstantiated evidence that made positive identification of the assailants difficult, nor did the prosecution evidence established that the incident scene, too, had any light shed by security light of a nearby gate. Reliance was placed in the case of Wamungu Vs Republic (1989) KLR 424, Maitanyi Vs Republic (1986) KLR 198, Anjononi & Others Vs Republic (1980) KLR 59 and Bukenya Vs Uganda (1972) EA 549 to emphasizes on this issue. 32.PW6 Dr Doyo Abduba had also confirmed that the complainant and the deceased motor rider had told him that they did not know who had attacked them and this contemporaneous evidence made closest in time to the alleged offence contradicted PW4’s assertion that he had identified PW4 at the scene of crime. It was therefore imperative, that an identification parade be conducted to ascertain if he was involved in the said crime, since that was the fulcrum of the prosecution. 33.This evidentiary gap, was made more glaring by the absence of an identification parade being conducted, and the only logical conclusion which could be arrived at was that the identification evidence was shaky at best and thus unreliable. Moreover, failure to conduct the said identification parade also infringed on his right to fair trial as enshrine under Article 50 of the Constitution of Kenya, 2010 because he was subjected to dock identification as the first and only mode of identification, which undermined due process and exposed him to wrongful conviction. Reliance was placed in the court of appeal case of Teresia Njeri Vs Republic, where it was held that where the complainant did not initially identify the assailant, but later purported to do so, the court must treat the later identification with extreme caution. 34.The 2nd appellant further faulted the trial magistrate for relying on untruthful evidence, especially that of PW4 who alleged that he managed to take a screenshot of the motorcycle used by the assailants during the robbery, when its rider applied brakes. However, the said phone which was alleged to have captured the said screenshot and/or electronic evidence was not produced into evidence and thus raised serious credibility concerns, and rendered the said evidence to be speculative. Reliance was placed in Ndungu Kimanyi Vs Republic (1979) KLR 283, & Kinyatti Vs Republic (1984) KLR, 712 where it was emphasized that the evidence presented must be credible and capable of belief. 35.Finally, the 2nd appellant also faulted the trial courts reliance on the recorded statement of the deceased motor cycle rider, which was admitted under Section 33(a) of the Evidence Act. He averred that the said statement was recorded after a violent and traumatic incident, when the said deceased was not in a proper state of mind and was not corroborated by other independent evidence, especially on the issue of identification. The trial Magistrate had therefore misdirected herself by elevating the said statement to conclusive proof rather than treating it with the caution mandated by law. 36.The appellant’s thus did pray that their appeal be allowed on both sentence and conviction, the same be set aside and they be released forthwith. B. Detemination. 37.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by The Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. It is not the function of the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 38.Also in Peter’s vs Sunday Post (1958) E.A. 424 it was held that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 39.Also in the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows: -“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 40.From the grounds of appeal raised by all the appellants, the issues brought forth can be summarised as follows;a.Whether the prosecution established the burden of proof against the 2nd appellant with regard to the offence of Robbery with Violence.b.Tied to the above is the question of whether, the learned trial magistrate, erred in both law and fact in her evaluation of the evidence as regards identification. Lack of identification parade and/or reliance of the statement of the deceased complainant, which was admitted under section 33 of the Evidence Act.c.Whether the trial Magistrate erred in convicting both Appellants for the offence of possession of a firearm and ammunition without a firearm certificate. Burden of Proof 41.It is trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows;“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 beyond reasonable doubt, but nothing short of that will suffice.” 42.The conceptual framework for burden of proof to be discharged by the prosecutor is beyond reasonable doubt. In Viscount Sankey LC in the case of H.L Woolmington Vs DPP {1935} A.C. 462 pp 481 did describe burden of proof in criminal matters as;“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defendant’s insanity and subject also to any statutory exception. If at the end and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether {the offence was committed by him} the prosecution has not made out the case and the prisoner is entitled to be acquittal. No matter what the charge or where the trial, the principal that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. I. Whether the prosecution established the offence of Robbery with Violence against the 2nd Appellant. 43.The 2nd appellant on counts I and II was charged with the offence of violently robbing Soso Robe and Boba Abdi Hirbo. The said offence is provided for under the Section 295 as read with 296(2) of the Penal Code, which provision’s states as follows:“Definition of Robbery”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).Punishment of robbery1.Any person who commits the felony of robbery is liable to imprisonment for fourteen years.2.If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 44.The ingredients of this offence were aptly discussed by Cockar, C.J., Akiwumi & Shah, JJ.A. in the case of Johana Ndungu vs. Republic CRA. 116/1995, [1996] eKLR where the Court of Appeal in Mombasa stated as follows: -“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is ‘use of or threat to use’ actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore -described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved, will constitute the offence under the subsection:(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, beats, strikes or uses any other violence to any person.” 45.What constitutes the offence of robbery with violence was also well captured in the case of Olouch vs Republic (1985) KLR where the Court of Appeal stated as follows: -“…Robbery with violence is committed in any of the following circumstances:The offender is armed with any dangerous and offensive weapon or instrument; orThe offender is in company with one or more person or persons; orAt or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.” 46.Also, In the case of Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007, it was stated that:“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence. 47.From the evidence adduced by the prosecution witnesses, there is no doubt that indeed a robbery incident did occur on the night of 1st October, 2022 at about 8.00pm, when PW1 and his motorcycle rider Boba Abdi Hirbo were violently attacked by two robbers, who violently robbed them of their money and in the process shot both of them on their lower limbs. PW1 was lucky to have survived from his wounds and lived to painfully relieve his story, but unfortunately Bobe Abdi Hirbo, later succumbed to complications arising from the gunshot injuries sustained during the said robbery incident. It therefore stands that all the ingredients of the said offence were adequately proved. 48.Having confirmed that indeed an incident of robbery with violence did occur, the next question arises is whether the witnesses properly identified the 2nd appellant as being amongst those who robbed them on the night of 1st October, 2022. II. whether, the learned trial Magistrate, erred in her evaluation of the identification evidence. 49.PW4 testified that he owned a shop known as, “Sosmart junction shop” situated at Nyayo road, and that on the material night at about 8.00pm, while closing the accounts for the day two customers came in sequence and requested to buy cigarettes and to carryout an Mpesa transactions but he told them that he had already closed for the day. In particular he affirmed that within his shop he used “solar lights” and also outside his shop had two solar security lights which were all on. As he closed his shop, he noted that that there was a red boxer motorcycle parked near his shop and became apprehensive of its owner’s intention, thus decided to note it’s registration number, which was KMFS 028M. 50.By then he had called his rider, Boba Abdi Hirbo who was waiting for him and as they took off, he noticed that the rider of the 2nd motorcycle had started to follow them, with its lights off and he urged his rider to speed up, with the 2nd motorcyclist keeping pace too. As they slowed down to navigate a corner, the other motorcyclist, managed closed in on them and he saw the pillion passenger remove a gun and fired two shots at them. His rider panicked and they fell down. The pillion passenger rushed forwarded, stood over him while aiming his gun over his head, demanding that he gives them all the money he had and the said robber took Kshs.32,000/= which he had placed in different pockets, before demanding for the keys to his shop. 51.As he struggled to get the keys, he saw his attackers hand move to the trigger, and he instinctively used his right hand to push the gun away. In the struggle the rider of the 2nd motorcycle also fired one shot at him causing him to let go of the gun and fell down. He heard the said rider, telling the pillion passenger in their native language that “he is dead, lets go” and the pillion passenger rushed, on boarded the said red boxer motorcycle and they took off. At this juncture using the break light again managed to note the registration number of the motor cycle saved it on his phone. He also managed to call his wife and told her to get help after which he lost consciousness and later found himself admitted at St Austin hospital in Meru. 52.Under cross examination, PW4 reiterated his evidence and insisted that he clearly saw the 2nd appellant as he was the customer, who had come to his shop, twice in succession asking for cigarettes just as he was about to close his shop. He was wearing a checked shirt and was he same assailant who stood over him while holding a AK-47 rifle demanding for money. He further emphasized that though there was a blackout within the area, his shop had enough solar lights, which he used to identify the 2nd appellant and also clarified at where they were attacked was near the gate of Mzee Gisse, which also had a security light. 53.The 2nd complainant, Boba Abdi Hirbo later died as a result of complications that arose due to the gunshot wounds sustained in the said robbery and his written statement to the police was admitted in evidence under Section 33(a) of the Evidence Act. His evidence mirrored that of PW4, but did not delve into the identity of the assailants. In defence the 2nd appellant categorically denied being involved in the said robbery and had been wrongly convicted based on mistaken identity. 54.The fundamental aim of eyewitness identification evidence is reliably to convict the guilty and to protect the innocent. The common law recognized several categories of identification evidence because the potential dangers of identification evidence differ between the categories. One is positive Identification evidence, which is evidence by a witness identifying a previously unknown person as someone he or she saw on a period relevant to the incident. Such evidence may be used as direct or circumstantial proof of an offence. 55.The second category is recognition evidence, which is evidence from a witness that he or she recognizes a person or object as the person that he or she saw, heard or perceived on a relevant occasion. In Kariuki Njiru & 7 others v Republic the court held that evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. 56.Further to determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before. See S v Henderson & R Vs Turnbull & others (1976) 3 ALL ER 549. 57.Finally, the trial court is also expected to assess the demeanour of a witness and in carrying out such an assessment, the court is expected to make a finding as to the integrity, honesty and truthfulness of such witnesses but not his or her boldness or firmness. 58.PW4 positively identified the 2nd appellant using his internal shop solar lights as the customer, who he twice in succession came and asked to buy cigarettes and he told him the same was not available. It should be noted that at this point, he came into close interaction with the 2nd appellant, under clear light, without any hinderance to his view and thus had reliable time and opportunity to see the person he was dealing with under normal circumstance. Further, the said robbery incident also occurred at the gate of Mzee Gisse house, which had security light at the gate, and the same enabled PW4 to see the robber who stood over him, holding a gun to his head was wearing the same checked shirt, which was similar to the one being worn by the customer who came as he closed his shop, which was the 2nd appellant. 59.It should be noted that the robbery incident occurred a few minutes later after PW2 had walked out of PW4 shop and this rule out the possibility that it was different person who, though similarly dressed robbed PW4. The only logical and safe conclusion, which can be made from the chain of uninterrupted events of the said fateful night was that the 2nd appellant and his colleagues stalked PW4, went to his shop, pretending to be his customers and proceeded to waylay him as he went home. 60.When all facts and circumstance of the case are considered, the prosecution evidence was solid and the charge as against the 2nd appellant on the robbery with violence was proved beyond reasonable doubt. This court has therefore finds no basis to depart from the said finding and therefore this ground of appeal fails. iii. Whether the trial Magistrate erred in convicting both Appellants for the offence of possession of a firearm and ammunition without a firearm certificate 61.PW1 PW2 and PW6 all confirmed that on 13.03.2023, they got a tip off that the 2nd appellant was at Badassa chief camp, where he had gone for national identification card vetting and they dashed to the said office and arrested both appellants. The proceed to the QRU camp and after interrogation, they lead the appellants to their home, which was near the said camp, where the 1st appellant led them to a place next to their home, where they recovered a AK-47 rifle, a jungle jacket with 30 rounds of ammunition, a camel bag with two magazines, one with 21 rounds of ammunition and the other with 41 rounds of ammunition, firearms cleaning kit and jungle belt. 62.The 1st appellant in defence denied being in possession of the said firearm and ammunition and insisted that he had been tortured in a forest near his home and eventually had the said gun and ammunition planted on him. He further stated that he had worked for KPR for 27 years and had never been implicated in any wrongdoing and indeed he had a gun he would store it at the police camp. The 2nd appellant similar denied being in possession of the said items and insisted that the same was not recovered from their home and that PW2 had given a different serial number for the recovered AK 47 rifle. 63.DW3 and DW4 stated that they were present at the appellants home, when the police came with them and conducted a search therein but did not recover any item. During the said process the appellants were being beaten up by the police, who later left with the said appellants without making any recovery. 64.Section 4 of the Penal Code, which is the interpretation section, defines “possession” as follows;(3)“Possession”(4),(a)“ be in possession of” or “ have in possession” includes not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place ( whether belongs to or occupies by oneself or not) for the use or benefit of oneself or any other person;(5),(a)if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything I his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them; 65.The Black`s Law Dictionary, 10th Edition, defines the term “possession” to mean –The fact of having or holding property in one’s power, the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of the claim to the exclusive use of a material object. Something that a person owns or controls.” 66.The definition of possession connotes two elements –1.being in physical control of the items of the offence and or in joint control with another.(2)knowledge or intention of having the article, instruments, thing or items constituting the offence. 67.In the case of Jean Wanjala Songoi & Patrick Manyola v Republic (2014)eKLR, the court expounded the same as follows:“…Possession would involve an element of control of the thing a person is said to have. It is, in effect, the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others. In this case, the aspect of the offence was not established beyond reasonable doubt against the appellants.” 68.In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the Court of Appeal, in constructing the provisions of Section 4 of the Penal Code, held that the section encompasses both actual and constructive possession. The Court held that:In our view, under that provision, having the RDX does not require the appellants to be in actual, personal physical possession of it. So long as there is evidence on record that they knowingly had the RDX at the golf course for their own use or that of any other person, that will constitute possession within the meaning of the Penal Code. Indeed in Martin Oduor Lengo & 2 Others v. Republic [2014] eKLR and Chrispine Kent Otieno v. Republic [2017] eKLR, this Court affirmed that possession under section 4 of the Penal Code encompasses both actual and constructive possession. 69.For a conviction to be sustained for the offence of possession of a firearm and/or ammunition the prosecution must prove beyond reasonable doubt, that the appellant had actual or constructive possession coupled with knowledge and control of the recovered items. With regard to control, PW3 confirmed from the ballistic examination undertaken that it was the same AK 47, that had been used in the robbery in question and was also linked to two other cases forwarded to them by DCI Marsabit office. 70.It has been proved beyond reasonable doubt that the 2nd appellant was involved in the said robbery and it cannot be a coincident that the same gun was recovered from within the vicinity of the appellant’s home. This fact alone establishes both actual and constructive possession as against the 2nd appellant. As regards the 1st appellant, though it is the evidence of the police officer’s that it was him who lead them to where the said items were recovered, the said evidence of itself without independent corroboration does not establish joint possession of the recovered items. His conviction of being in possession of firearm and ammunition is therefore unsafe and is set-aside. D. Conclusion 71.Flowing from my analysis and conclusions on all the issues discussed above, it is my finding that the trial court did not misdirect itself in returning a finding of guilty as against the 2nd appellant for both the charge of robbery with violence and for being in possession of both firearm and ammunition. The conviction is supported by evidence and I find no reason to disturb it. 72.The 1st appellants appeal against his conviction for the offence of being in possession of a firearm and ammunition succeeds and the said conviction and sentence is set-aside. 73.Right of appeal 14 days. 74.Judgment Accordingly. JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT THIS 12TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 12TH DAY OF MAY 2026.In the Presence of1st Appellant – Present in Court2nd Appellant – Present from NyeriMr. Mburugu -----------------------For ODPPMr. Jarso -----------------------Court Assistant