https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9310

John alias Christopher Makau & another v Republic (Criminal Appeal E162 of 2025) [2026] KEHC 9310 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9310 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E162 of 2025 DR Kavedza, J June 30, 2026 Between Simon Muasa John alias Christopher Simon Makau 1st Appellant James Muraguri Mwangi 2nd Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 19th December 2025 by Hon. C.M Njagi (P.M) at Kibera Chief Magistrate’s Court, Criminal Case no. E1336 of 2023 Republic vs Simon Muasa John & James Muraguri Mwangi) Judgment 1.The Appellants were jointly charged with two counts of robbery with violence contrary to section 296(2) of the Penal Code. Following a full trial, they were convicted on both counts and sentenced to death. 2.Aggrieved by both the conviction and sentence, the Appellants lodged the present appeal. They challenge the sufficiency and credibility of the prosecution evidence, contend that the trial court failed to properly consider their respective defences, and argue that the sentence imposed was harsh and excessive. They accordingly urge this Court to quash the convictions, set aside the sentences, and allow the appeal. 3.This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32) 4.The prosecution called seven witnesses. PW1, Dinbala Vaghela Tribown the complainant, testified that on the night of 22nd August 2023, she was at her residence with her grandson, Bernice and the security guard, Daniel Mutua. Shortly after serving food, three men forced their way into the house. She identified the Appellants as two of the assailants. The intruders, one of whom was armed with a knife, tied up the occupants and confined them in a downstairs toilet before stealing cash, jewellery and other valuables. 5.PW1 stated that she was dragged upstairs by her hair, assaulted and strangled as she was forced to reveal where money was kept, after which she was returned to the toilet. After the assailants left, Bernice freed herself and untied the others. They later reviewed the CCTV footage, which showed the security guard opening the gate for the assailants, whose faces were uncovered. PW1 identified the Appellants from the CCTV footage and in court as two of the robbers. She also identified photographs extracted from the CCTV footage. 6.PW2, Bernice Nthenya Kieti, testified that she was outside using her mobile phone when three men accosted her. One strangled her while the others entered the house. She was later taken inside, where she found the complainant and her grandson tied up. The assailants robbed her of a Samsung Galaxy mobile phone before confining all the victims in a toilet. After approximately thirty minutes, the robbers left. 7.PW2 managed to free herself and untied the others before they sought assistance. She identified the 2nd Appellant from the CCTV images and confirmed that the footage depicted the assault upon her. 8.PW3, Harrison Munyao, testified that he operated East Africa Shield Security Guard Services and that the 1st Appellant was his employee. Upon learning of the robbery, he visited the scene, viewed the CCTV footage and found the house ransacked while the security guard was missing. He reported the matter to Akila Police Station. Having known the 1st Appellant for several years, he identified both Appellants from the CCTV footage. He further testified that following their arrest, police searched the 1st Appellant's residence and recovered several of the stolen items. 9.PW4, Police Constable Wilberforce Wabwire of Akila Police Station, testified that upon receiving information that one of the robbery suspects had been arrested in another matter at Makadara, he facilitated the arrest of the 2nd Appellant. The 2nd Appellant was subsequently charged together with the 1st Appellant. No items were recovered from him upon arrest. 10.PW5, Corporal Purity Kiilu, a gazetted forensic imaging analyst, testified that she analysed CCTV footage submitted by the investigating officer. She explained the extraction and analysis process and detailed the sequence of events captured by the footage, including a person opening the gate to admit three men, the assault on PW2 and the robbery inside the house. She produced the CCTV footage, extracted photographs, her forensic report, the exhibit memo and the certificate relating to electronic evidence. 11.According to her analysis, the faces of both Appellants were clearly visible in the footage, and she found no evidence that the recordings had been tampered with. 12.PW6, Inspector Sally Kemei, the investigating officer, testified that she took over the investigations on 6th September 2023 and recorded witness statements. She confirmed that items were recovered from the 1st Appellant's residence and produced them, together with his identity card, as exhibits. She further testified that upon arrest, the 1st Appellant initially identified himself as Christopher Samuel Makau. She confirmed that the robbery was reported on 23rd August 2023 following the incident of the previous night. 13.PW7, Dr Kanjama of Mbagathi Hospital, testified that he examined PW2 and completed her P3 Form. He observed a healing abrasion on her chin, approximately thirteen days old, consistent with injury caused by a sharp object. He assessed the degree of injury as harm and produced the treatment notes and P3 Form. 14.At the close of the prosecution case, the trial court found that a prima facie case had been established against the Appellants on both counts and placed them on their defence under section 211 of the Criminal Procedure Code. 15.In his sworn defence, the 1st Appellant gave sworn evidence. He testified that he was a businessman who had been falsely implicated following a business disagreement with PW3. He stated that he was lured into a meeting under the guise of a business opportunity before being arrested. He challenged the authenticity of the CCTV footage and maintained that the prosecution had fabricated the case against him. He maintained his innocence. 16.In his sworn defence, the 2nd Appellant denied any involvement in the robbery and stated that he had been at his home in Meru on the material date. He questioned the absence of receipts for the stolen property and maintained that none of the complainants knew him prior to the incident. Although he raised an alibi, he called no witness in support of it. 17.The trial court, convicted and sentenced them accordingly. 18.The appeal was canvassed by way of written submissions, which I have duly considered. The Appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code, which provides:“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." 19.The prosecution's case was that on the night of 22nd August 2023, the Appellants, jointly with another person not before the Court, violently robbed the occupants of a residential house. The assailants entered the compound, overpowered the occupants, tied them up, confined them in a toilet and stole cash, jewellery, mobile phones and other valuables. 20.The first ingredient of theft was established by the evidence of PW1 and PW2. PW1 testified that the assailants stole cash, family jewellery and other valuables from the house, while PW2 testified that her Samsung Galaxy mobile phone was stolen during the robbery. Their evidence was corroborated by PW6, the investigating officer, who recovered some of the stolen items from the 1st Appellant's residence. 21.The second ingredient is the use of actual violence immediately before and during the robbery. PW1 testified that she was dragged upstairs by her hair, assaulted and strangled as the assailants demanded money before she was tied up again and thrown into a toilet. PW2 testified that she was strangled, pinned to the ground and forcibly confined together with the other occupants. PW7, the medical officer, confirmed that PW2 sustained injuries assessed as harm, consistent with the assault she described. The violence was clearly employed to subdue the victims and facilitate the robbery. This ingredient was proved. 22.On the third ingredient, PW1 testified that one of the assailants, whom she identified as the 1st Appellant, was armed with a knife which was used to threaten the victims throughout the robbery. Further, the evidence of PW1, PW2 and the CCTV footage established that the offence was committed by three assailants acting jointly. Either circumstance independently satisfies the requirements of section 296(2) of the Penal Code. 23.The final issue concerns identification. PW1 positively identified both Appellants as two of the robbers who entered her residence. PW2 also identified the 2nd Appellant as one of the assailants. Their evidence was reinforced by the CCTV footage analysed by PW5, a qualified forensic imaging analyst, who confirmed that the footage had not been tampered with and clearly depicted both Appellants participating in the robbery. PW3, who had known the 1st Appellant for several years, also recognised both Appellants from the CCTV footage. The evidence therefore amounted to both visual identification and recognition, corroborated by electronic evidence. 24.In their respective defence, the 1st Appellant alleged that he had been framed following a business disagreement with PW3 and challenged the authenticity of the CCTV footage, while the 2nd Appellant raised an unsupported alibi. The Appellants' sworn defences were mere denials and did not displace the consistent, cogent and corroborated prosecution evidence. 25.I am satisfied that the prosecution proved beyond reasonable doubt that the Appellants, jointly with another not before the Court, while armed with a dangerous weapon, used actual violence to rob the complainants in their residence of cash, jewellery, mobile phones and other valuables. All the ingredients of robbery with violence contrary to section 296(2) of the Penal Code were established. The convictions are therefore safe and are hereby upheld. 26.The appellants were each sentenced to death which is the prescribed sentence for the offence under section 296(2) of the Penal Code. However, sentencing is now a discretionary judicial exercise requiring the court to consider the circumstances of the offence, the offender and the applicable sentencing principles. 27.I am guided by the decision of the Court of Appeal in Evans Nyamari Ayako v Republic, Criminal Appeal No. 22 of 2022, which observed that a sentence of life imprisonment should, in appropriate circumstances, be understood as a determinate sentence of up to thirty years' imprisonment. 28.Having considered the violent nature of the robbery, in which the Appellants, jointly with another not before the Court, were armed with a knife, violently assaulted the complainants, tied them up, and robbed them of cash, jewellery, mobile phones and other valuables, and bearing in mind the principles of proportionality and consistency in sentencing, I find that the death sentence imposed by the trial court is excessive. 29.The sentence of death is accordingly set aside and substituted with a sentence of thirty (30) years' imprisonment on each count, the sentences to run concurrently. Pursuant to section 333(2) of the Criminal Procedure Code, the sentence in respect of the 1st Appellant shall run from 31st August 2023, while that of the 2nd Appellant shall run from 25th September 2024, being the respective dates of their arrests. 30.Accordingly, the appeal partially succeeds only to the extent of the sentence.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026D. KAVEDZAJUDGEIn the presence ofAppellants PresentMs. Otiya for the RespondentKarimi Court Assistant