https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7899

Kariuki v Republic (Criminal Appeal E036 of 2024) [2026] KEHC 7899 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7899 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Appeal E036 of 2024 LN Mutende, J June 2, 2026 Between John Mwangi Kariuki Appellant and Republic Respondent Judgment 1.John Mwangi Kariuki, 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. Particulars of the offence were that on the night of 25th day of June, 2020 at Kasarani Estate in Nyahururu Sub-County within Laikipia County while armed with a knife robbed one Hannah Wanjiru Wachira one mobile phone make Itel Serial No. 355484103367535/534/550 valued at Kshs.1,100/- and at or immediately before or immediately after the time of such a robbery threatened to use actual violence to the said Hannah Wanjiru Wachira. 2.In the alternative, he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 26th day of June, 2020 at Kasarani Estate in Nyahururu Sub-County within Laikipia County, otherwise in the course of stealing, dishonestly received or retained one phone make Itel Serial No. 355484103367535/534/550 knowing or having reason to believe it to be stolen goods. 3.The Appellant denied the allegations, was taken through full trial, found guilty of the principle charge, convicted and sentenced to suffer death. 4.Aggrieved, he appeals on grounds that; 1.That the trial learned trial Magistrate erred in law and fact by convicting on defective charge sheet not curable by Section 382 of the Penal Code. 2.That the learned trial Magistrate erred in law and fact by conviction citation of principles of recent possession which were not proved beyond reasonable doubt. 3.That the learned trial Magistrate further erred in convicting the Appellant on contradicting evidence of identification of a single witness. 4.That the sentence imposed was harsh and excessive and not informed by facts and circumstance of the case. 5.Briefly, facts of the case were that on the 25th January, 2020, PW1 Hannah Wanjiru Wachira used a motorcycle as means of transport to get home. It had rained and the road was slippery. Upon alighting she saw a person who however disappeared. As she walked on, the same individual she had seen by aid of the motorcycle’s headlamp light as a primary source of illumination appeared. He had a bottle and he told her to switch off the torch light. Being curious she cast the torchlight on his face and as they walked on the person strangled her and she screamed. But, he snatched her phone and handbag and threatened to throw her into the river. Her son PW2 who was going to meet her on hearing her scream rushed to the place only to find his mother having been accosted. They went home. 6.The following day she reported the matter to the police. On the same day PW1 spotted the person and sought help from PW3 John Mwaura who was nearby. The person was arrested, searched and a cellphone was recovered which the Complainant identified as the one she lost the previous night. Afterwards he was charged. 7.Upon being placed on his defence, the Appellant denied the allegations. He stated that he had gone to a tree nursery and at 11.30am he encountered a girl along the road that he seduced. Suddenly, he was hit from behind. That he was assaulted by people including the village elder and the Member of the County Assembly (MCA) who directed that he be taken to the police station. While at the office of the Officer Commanding the Police Station (OCS) he was told to admit the charges. That he was not taken to hospital and charges were preferred the following day. 8.The appeal was canvassed through written submissions which I have duly considered alongside authorities cited. 9.This is a first appellate court which is required to reassess and analyze evidence adduced at trial and come up with independent conclusions. The court must however remember that it never heard or saw the witnesses who testified. In David Njuguna Wairimu v Republic [2010] KECA 495 (KLR) the court stated that;“The duty of the first appellate court was to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There were instances where the first appellate court would, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. There was nothing objectionable in doing so, provided it was clear that the Court had considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 10.It is urged that the charge was defective for being duplicitous which brings about confusion. Further, that the charge is at variance with evidence on record. The Appellant faced charges brought under Section 295 as read with Section 296(2) of the Penal Code. Therefore, capturing both the offence of simple robbery and aggravated robbery. 11.What the court should grapple with is whether some prejudice was suffered such that the Appellant did not understand the charges. The particulars of the offence read thus;“on the night of 25th day of June, 2020 at Kasarani Estate in Nyahururu Sub-County within Laikipia County while armed with a knife robbed one Hannah Wanjiru Wachira one mobile phone make Itel Serial No. 355484103367535/534/550 valued at Kshs.1,100/- and at or immediately before or immediately after the time of such a robbery threatened to use actual violence to the said Hannah Wanjiru Wachira.” 12.The statement of the offence reads;“…. Section 295 as read with Section 296(2) of the Penal Code” 13.Section 295 of the Penal Code provides thus;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. 14.Section 296(2) of the Penal Code provides thus;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. 15.In Oluoch v Republic [1985] KLR the Court of Appeal stated that;“Under section 296(2) of the Penal Code, robbery with violence is committed in any of the following circumstances; 1.The offender is armed with any dangerous or offensive weapon or instrument. 2.The offender is in company with 1 or more person or persons, or, 3.At or immediately before or immediately after the time of the robbery, the offender wounds, beat strikes or uses other personal violence to any person” 16.The stated elements are read disjunctively and the court can convict the Accused where only one element is proved. (See Dima Denge & 7 Others Criminal Appeal No. 300/2007). 17.According to particulars of the offence the perpetrator was armed with a knife but evidence adduced is at variance. Remarkably, the witness stated that the individual was armed with a bottle and the trial court took note of the discrepancy. 18.What is not disputed is the fact of a phone having been found in possession of the Appellant at the point of arrest. The offensive act was committed at night and the identification was of a single witness. In S v Sauls & Others 1981(3) SA 172(A) the Appellate Division of South Africa held that;“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial Judge will weigh his evidence, will consider the merits and demerits and having, done so, will decide whether it is trustworthy and whether, despite, the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.” 19.In Roria v Republic [1967] EA 583, the court stated that;“A conviction resting entirely on identity invariably causes a degree of uneasiness.....That danger is, of course, greater when the only evidence against an Accused Person is identification by one witness and although no one would suggest that conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all circumstance it is safe to act on such identification.” 20.The complainant was sure of having identified the Appellant on the material night. She was aided by light from the motorcycle headlamp and the torch that she had. She saw and identified him the following day. PW3 a teacher not known to the complainant assisted her and when searched he was found with a cellphone belonging to the complainant. Without any explanation of how he came to possess the phone the allegation that he had gone to seduce a girl must be disregarded. 21.It was evidence of the complainant that the Appellant threatened to throw her into the river. No doubt a threat to use violence existed before the phone was stolen. This means that the offence that was disclosed fell under Section 296(1) of the Penal Code which provides for a penalty of up to fourteen (14) years imprisonment. 22.The Appellant was properly informed of the offence and he mounted a defence based on the charges read and evidence adduced. That being the case, I quash the charge of Robbery with violence and substitute it with a conviction for a lesser offence of Robbery contrary to Section 296(1) of the Penal Code; then proceed to sentence him to Seven (7) years imprisonment, with effect from the date of arrest, the 26th day of June, 2020. 23.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JUNE, 20206.…………………….L.N. MUTENDEJUDGE