https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8343

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL APPEAL NO. E127 OF 2022** **JOSEPHAT ODONGO MUSA…………………………………………… APPELLANT** **VERSUS** **REPUBLIC…………………………...….………………………………...RESPONDENT** **(Being an appeal from the Sentencing of Hon. D.O. ONYANGO CM Migori CMCCRC No. E02 of 2020 delivered on 29th November, 2022)** **JUDGMENT** The Appellant Josephat Odongo Musa was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence are that on of 8th day of October 2020 at Namba area in Suna West Sub-County in Migori County in the Republic of Kenya jointly with others not before court robbed James Masudi Solomon of his tablet make Techno G9 valued at Kshs. 30,000/=, one Itel mobile phone valued at Kshs. 4,000/= and immediately after the time of such robbery beat James Masudi Solomon. In the alternative the Appellant was charged with the offence of handling stolen property contrary to Section 322(1) & (2) of the Penal Code. Upon consideration of the evidence of 4 prosecution witnesses and the sworn testimony of the accused person the Trial Magistrate found the accused persons guilty of the offence of robbery with violence and he was convicted. The Appellant was aggrieved by the whole judgement and lodged his undated Petition of Appeal on the following grounds: 1. That he pleaded not guilty to the charge herein 2. That the Trial Magistrate erred in both law and facts by not complying with Article 50(2)(g) & (h) of the Constitution 2010 3. That the Trial Court erred in both law and facts by not observing that the ingredients of the offence herein were not proved as required in law. Reasons wherefore the Appellant prayed that conviction be quashed and sentence set aside and that leave be granted for him to file supplementary / amended grounds of appeal after receiving the lower court proceedings. PW1 the Complainant herein testified that on 8th October 2020 when he was coming from his shop at about 7.00pm he was attacked by 3 people a few meters from his house. He said he identified 2 of the attackers as Paul who demanded for cash from him and the Appellant herein who was known as Baba who joined in the attack. He said he had known the Appellant before as he used to see him in the area where he operated his shop. PW1 said the 3 attackers overpowered him and stole from him and that the Appellant used a knife to stab his right hand. PW1 showed the court the scar inflicted by the Appellant. He said that when he screamed, one Iddi responded and when the attackers saw Iddi, they ran away. He said during the attack his 600/= was stolen from his pocket. That they also stole his tablet make Techno G9 and Itel mobile phone. PW1 said the tablet was later recovered from the Appellant. As a result of the injuries suffered by the Appellant during the attack he was treated at Migori County Referral Hospital and he identified treatment notes and the P3 form which was duly filled assessing injuries as harm PW1 said the Appellant was arrested relying on information from his friend. In cross examination, PW1 said that he was attacked by 3 people and that Paul used to prepare building stones near where he was attacked. He said he knew where Paul stayed. He also said that he used to see the Appellant and heard people refer to him as baba. PW1 said he had not differed with the Appellant. He said he gave the police the names of Paul and Baba. He said he did not know how the Appellant was related to Paul PW2 Iddi Obwango Oguta testified that he knew the Complainant and that he resided at Namba. He recalled that on 8th October 2020 he was in company of his wife Judith going home when it started raining and they took shelter at a plot owned by their family. That while there he decided to go for a short call in a pit latrine. When going for the short call he heard someone call his name. That when he rushed to where the person had raised alarm, he found the Complainant being strangled by the Appellant’s uncle while the Appellant who was armed with a log appeared to be celebrating. That when he arrived at the scene the Complainant held his shirt seeking for help. That he struggled with the Appellant’s uncle and managed to separate the 2. PW2 said he heard the Complainant complain that his phone had been stolen and money. He said he also saw the Complainant had a cut on the right hand which he said had been inflicted when he fought with the Appellant’s uncle.PW2 identified the Appellant as the one who was celebrating when his uncle was fighting with the Complainant. PW3 P.C. Anne Nashome testified that she was attached at Migori Police Station at the time the offence herein was committed. She recalled that on 9th October 2020 the Complainant went to Migori Police Station and reported that he had been assaulted and robbed. He was issued with P3 form and his statement and that of his witness was recorded. That upon compiling the file she prepared charge against one of the suspects who had been arrested. PW3 said that on arrest the Appellant’s back pack was searched and a techno phone which was identified by the Complainant was recovered. The Techno phone was produced as exhibit P3. In cross examination PW3 said she did not know Samuel Okiyo Odongo. She said that they did not take photograph of the Appellant with the phone and they did not take an inventory when the said phone was recovered. PW3 further said that she did not visit the scene or the Appellant’s home. She said that the recovery of the Techno phone was booked in the OB. PW4 Frank Manyinze the Senior Clinical Officer at Migori County Referral Hospital produced P3 form that was filled by his colleague Julius Magati in respect of the injuries suffered by the Complainant when assaulted and allegedly robbed. The injuries were assessed as harm. He produced the treatment Notes and P3, Ex P2. In cross examination PW4 said that the Complainant said that he had been assaulted by known people but did not give their names. DW1 Upon close of prosecution evidence the Trial Magistrate found the Appellant had a case to answer and he was placed on his defence. The Appellant gave sworn statement and he said that he came from Awendo and he sells building stones. He said that he did not understand the charges against him. He said that on 8th October 2020 he left for Narok and alighted from a matatu at Migori. That suddenly 2 men and a female approached him and he was ushered into a saloon car. That when he demanded to know why he had been arrested he was told that he had assaulted a person inside the car. That he was shown a Techno phone which he denied knowing about. That on the way he was asked about Paul his nephew and he told them he did not know where he was. The Appellant said he learnt that Paul had assaulted a person that was in his company. The Appellant said he had just come from Narok but he was escorted to Migori Police Station where he was placed in the cells. That he was urged to contact Paul and he learnt Paul was in Rangwe within Homa Bay County. That the police demanded for 30,000/= to go and get Paul and his uncle gave the money but Paul was not arrested. The Appellant said that he was arraigned in court but Paul was never brought and he learnt that the person who arrested him was not a police officer. He said the Complainant did not give the name of the assailants to the police when he reported the alleged robbery. The appeal herein was canvassed by way of written submissions. The Appellant’s written submissions are undated and are to the effect that the evidence in the trial court was shaky and full of irregularities which openly demonstrated an open ill motive in regards to the matter. It was submitted that the Complainant’s assertion that the Appellant joined his uncle Paul in the fight with the Complainant was contradicted by PW2 who said that the Appellant was at the scene but he did not assault the Complainant although he looked like he was in a celebratory mood while his uncle was fighting with the Complainant The Appellant also submitted that the only eye witness introduced an element of rain which the Complainant did not mention and therefore putting doubt in the prosecution case since if it was raining the Complainant could also have indicated so. The Appellant said he was not at the scene as he had gone to Narok and on return to Migori he alighted from a matatu and he was arrested by people he later learnt were not police officers. He said that if he was at the scene and his uncle was fighting with the Complainant, he could not have left his uncle to fight alone. He said that PW2 said he intervened to separate the Complainant and Paul who were fighting and the element of robbery with violence did not arise. The Appellant said that it was clear from the evidence that he was not involved in the fight and that he is bearing the blame on behalf of Paul whom the police have failed to locate and arrest. The Appellant further said that the prosecution did not demonstrate under what circumstances the Techno phone was associated with him since the bag from which the alleged phone was recovered was not brought to court as evidence. He submitted further that the prosecution evidence is porous and cannot hols a conviction as doing so would amount to a miscarriage of justice. The Appellant urged the court to quash conviction and set aside the sentence as he has suffered in prison for 5 years for an offence he did not commit. The Respondent’s submissions are dated 4th December 2025 and are to the effect that the Trial Court informed the Appellant his rights under Article 50(2) (g) & (h) of the Constitution of Kenya during plea taking and the said rights were not infringed. It was further submitted that during trial the Appellant clearly understood the process and was able to effectively cross examine the witnesses. That the fact that he had no legal representation was not fatal to this case as the right to free legal representation is not an absolute right. That at the time of trial he demonstrated he clearly understood the charges laid against him and his rights were therefore not infringed. On whether the prosecution proved its case beyond reasonable doubt, it was submitted that the offence of robbery with violence is made up of two parts as outlined under Section 296 of the Penal Code and the prosecution is required to prove that the offender was armed with any dangerous or offensive weapon or instrument, or that the offender was in the company of one or more other person, or that at or immediately before or immediately after the time of the robbery he wounded, beat, or used any other violence to any person. The Respondent Counsel submitted that it was proved that the Appellant was in company of two other people and that he had a knife which he used to injure the Complainant. The court was therefore urged to find that the prosecution case was proved beyond reasonable doubt Regarding the ground that sentence was harsh and excessive in the circumstances it was submitted that the offence is serious and attracts death sentence and/ or life imprisonment and the court was therefore lenient and meted 13 years imprisonment after considering mitigation and period spent in custody. The Respondent Counsel cited the holding in the case of Bernard Kimani Gacheru Vs Republic [2002] eKLR where to support their position that the sentence was lenient. The court was therefore urged not to interfere with the sentence passed by the trial court as it was sufficient given the circumstances of the case. **Analysis and Determination** In a first appeal, the duty of the court was stated in **Mark Oiruri Mose vs. R (2013) eKLR thus**; **“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”** Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: 1. Whether the Trial Magistrate erred in both law and facts by not complying with Article 50(2)(g) & (h) of the Constitution 2010 2. Whether the Trial Court erred in both law and facts by not observing that the ingredients of the offence herein were not proved as required in law. On the second issue as to whether the prosecution had proved beyond reasonable doubt that the Appellant committed the offence of the offence of robbery PW1 alleged that the Appellant joined in attacking him, that the Appellant stabbed him with a knife; and the Appellant participated in the robbery. However, PW2 — who was the only independent eyewitness to arrive during the incident stated something materially different. His evidence was that it was the Appellant’s uncle, Paul, who was physically struggling with the Complainant and that he intervened and separated Paul and the Complainant. OW2 said the Appellant was merely nearby “celebrating” while armed with a log. PW2 did not testify that he saw the Appellant assault the Complainant, rob him, stab him, or take any property. That distinction is important because the prosecution relied heavily on visual recognition evidence occurring at night during a violent confrontation. PW2 was a key prosecution eye witness and having given evidence that materially departed from the complainant’s account as to the role played by the accused, the court must treat such evidence cautiously. The contradiction is not minor. It goes to the core question as to what exactly did the Appellant did. Indeed, PW2’s account tends to support the Appellant’s argument that the actual assailant was Paul and not the Appellant. Secondly, the inconsistency regarding the stolen item is significant. The charge sheet and PW1’s evidence was specific that the stolen item was a “Techno G9 tablet.” However, PW3 testified that upon arrest, a “Techno phone” was recovered from the Appellant. Those are not necessarily the same item. A tablet and a mobile phone are distinct electronic devices. The prosecution did not produce purchase receipts, serial numbers or IMEI details to establish ownership through unique identifiers, explain whether the recovered device was a tablet or a phone, produce an inventory of recovery, produce photographs of the recovery, or clarify the discrepancy in evidence. Further, the exhibit was referred to as a “Techno phone” and not specifically as the stolen “Techno G9 tablet.” That inconsistency weakens the alleged recovery evidence and undermines any intended reliance on the doctrine of recent possession. In Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic (Criminal Appeal No. 272 of 2005) the Court of Appeal defined the legal authority establishing the strict four-part test for the doctrine of recent possession under Kenyan criminal law that must be *positively proved* by the prosecution before a court can safely infer guilt based on recent possession as follows: 1. It must be shown that the property was stolen. 2. The property must have been recently stolen from the complainant. 3. It must be positively proved that the stolen property was found in the actual possession of the accused. 4. The accused must have failed to offer a reasonable and truthful explanation as to how they came into possession of the property. In Malingi v Republic it was clarified how courts must evaluate cases where a suspect is found with recently stolen goods: Finding an accused person in possession of recently stolen property raises a strong legal presumption that they are either the thief or a "guilty receiver," under Section 119 of the Evidence Act, Cap 80 of Kenya. Once the prosecution proves the item was stolen and recently found with the accused, the burden temporarily shifts to the defendant to provide a reasonable, plausible explanation for how they legally acquired it. The court ruled that this doctrine cannot be applied blindly. The prosecution must positively identify the property and prove that the possession was indeed "recent" relative to when the crime occurred. Here, positive identification of the recovered gadget appears doubtful. When these two issues are considered cumulatively, uncertainty as to the Appellant’s actual role during the attack, evidence pointing more directly to Paul as the aggressor, weak recovery evidence, lack of inventory or identification particulars and failure to arrest the alleged principal offender Paul, there emerges a reasonable doubt as to whether the Appellant was proved to have jointly participated in the robbery with violence. In the circumstances, it can safely be concluded that suspicion arising from association with Paul and presence at the scene is very strong but cannot substitute proof beyond reasonable doubt. In consideration of the above view, this court finds that it was not safe to find a conviction based on the doubtful and uncertain evidence tendered by the prosecution. In the circumstances this court finds that the appeal has merit and the same is allowed in its entirety and the court hereby quashes the conviction and sets aside the sentence. The Appellant is hereby set at liberty unless lawfully detained. Right of Appeal 14 days. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 21ST DAY OF MAY, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Victor – Court Assistant