https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1363

Tanui v Republic (Criminal Appeal E021 of 2024) [2026] KECA 1363 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1363 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal E021 of 2024 JM Mativo, PM Gachoka & MB Kairaria, JJA July 10, 2026 Between Julius Kiplangat Tanui Appellant and Republic Respondent (An appeal from the judgment by the High Court of Kenya at Kilgoris (F.M. Gikonyo, J.) delivered on 23rd July, 2024 in HCCRA No. E035 of 2023) Judgment 1.In this second appeal, Julius Kiplangat Tanui, the appellant, challenges his conviction and sentence for the offence of robbery with violence, contrary to section 296 (2) of the Penal Code. The particulars of the offence were that on 19th December 2018, at Angata Location, Transmara West Sub County within Narok County, jointly with another not before the court, the appellant, being armed with an offensive weapon, namely a metal bar, a stick and a bottle, robbed Wesley Kemei Kshs. 3,700.00, and immediately before the time of such robbery, wounded the said Wesley Kemei on the forehead and the left arm. 2.The appellant was arraigned before the Senior Principal Magistrate’s Court at Kilgoris, in Criminal Case No. 76 of 2019. He entered a plea of ‘not guilty’. After a full trial, the appellant was convicted as charged and sentenced to 20 years imprisonment. 3.Upon consideration of the prosecution evidence, and the appellant’s defence, the trial court, in its judgment dated 25th October 2013, found that all the elements of the offence of robbery with violence had been proved. It proceeded to convict the appellant as charged and sentenced him to 20 years imprisonment. Dissatisfied with both his conviction and sentence, the appellant lodged an appeal before the High Court in Kilgoris, HCCRA No. E035 of 2023. In his judgment dated 23rd July 2024, Gikonyo, J. dismissed his appeal on conviction and sentence. It is those findings that have galvanized the present appeal. We shall revisit the question of sentence later in the judgment since the sentence provided for robbery with violence offence is a death sentence. 4.The appellant filed his notice of appeal and memorandum of appeal, both dated 28th February 2025. The appellant also filed supplementary grounds of appeal dated 12th June 2025. In summary, the appellant raised 10 grounds disputing the findings of the learned magistrate. We have summarized those grounds as follows: the ingredients of the offence of robbery with violence were not proved to the required standard; he cast doubt on whether the identity of the culprit satisfied the test for proof; no medical evidence tied the appellant to the offence; the evidence presented by the prosecution was full of gaps, insufficiencies and inconsistencies, rendering the conviction harsh; the conviction was based on the uncorroborated evidence of a single identifying witness; his alibi defence was not considered; and the sentence meted out was harsh and excessive. For those reasons, the appellant prayed that his appeal be allowed, his conviction be quashed and his sentence set aside so that he is set at liberty. 5.The appeal was virtually heard on 24th March 2026. Mr. Yegon had instructions to appear for the appellant, who was also present, while Senior Assistant Director of Public Prosecution, Mr. Omutelema, was present for the respondent. Parties informed the Court that they relied on their respective written submissions that were orally highlighted. 6.Before the appeal was argued, the appellant was given a formal warning regarding the respondent’s notice of enhancement of the appellant’s sentence dated 10th March 2026. The Court warned the appellant that, should his conviction be sustained, then his sentence, which was illegal, would be enhanced to that of death. The said notice was explained in a language that the appellant understood, that is Kalenjin. After confirming that he understood the import of the said notice of enhancement, he responded that he wished to proceed with the appeal. 7.The appellant’s written submissions, list of authorities and case digest, all dated 13th June 2025, framed three issues for determination: whether the identification by the appellant was free from error; whether the evidence on record was properly analyzed; and whether his alibi defence was considered. On the first issue, Mr. Yegon observed that the incident occurred at 10:00 p.m. on a rainy and muddy night. He argued that though the complainant testified that he saw the appellant with the help of the torch light, he was not in control of the illumination and could not identify the culprit. 8.Counsel further submitted that the complainant’s testimony was marred with contradictions, urging this Court to look into the same. He further cast doubt on the testimony of the complainant who stated that he was a man of poor memory. He also suggested that the presence of three offensive weapons may have distracted the complainant from adequately identifying the culprit. 9.It was observed that when the complainant reported to the village elder, who was declared a hostile witness, he failed to disclose the description or recognition of the assailant. In counsel’s view, since the appellant was his neighbour, it would not have been difficult to describe him at that juncture. In any event, the village elder testified that the complainant told him that he was attacked by unknown persons, testimony that was not taken into consideration by the two courts below. Additionally, the two courts below failed to consider that third parties, namely Leonard Langat alias Kopku and Wesley Kiplangat, and not the appellant, were named as the perpetrators. 10.Still on the issue of identification, the appellant’s advocate urged us to consider that the arresting officer never gave a vivid description of the person identified as the culprit. Lastly, it was cast in doubt that the appellant’s mother rescued the complainant as she was elderly, and it was unlikely that she was out of the house at those wee hours of the night and she was incapable of escorting the complainant to the hospital where he received treatment at 3:00 a.m. 11.On the second issue framed, it was submitted that the trial court failed to caution itself on convicting the appellant on the basis of the testimony of the complainant, the single identifying witness. In addition to this, the offensive weapons, purportedly seen during the attack, were never adduced in evidence. That the evidence of the complainant, coupled with the serious issues of doubt raised by the appellant, as well as the fact that the complainant’s P3 form was not produced by its maker, thus no medical evidence, could sustain a conviction. 12.On the third issue framed, counsel submitted that his defence was not considered yet it was cogent. For those reasons, the appellant urged this Court to allow his appeal. 13.The respondent opposed the appeal. Mr. Omutelema filed written submissions, a case digest and a list and bundle of authorities, all dated 24th June 2025, to submit that on identification of the assailant, the complainant recognized the appellant as his neighbour, having engaged with him on more than 10 occasions before the offence was committed. In addition, the appellant’s mother escorted the complainant to hospital, cementing the complainant’s evidence, since the appellant failed to call his mother as a witness. 14.Mr. Omutelema further submitted that the ingredients of the offence of robbery with violence were proved beyond any shadow of a doubt. Furthermore, the appellant’s defence was considered but rightly rejected since it left the evidence of the prosecution watertight. He further contended that the complainant was not so inebriated as to make him incapable of identifying the culprit. That the evidence on record was sufficient. For those reasons, counsel prayed that the appeal be dismissed. 15.As a second appellate court, our bounden duty is to concern ourselves only with matters of law and not facts. Under section 361(1) (a) of the Criminal Procedure Code, our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence, they were plainly wrong. [See Dzombo Mataza vs. Republic [2014] eKLR]. 16.Before we consider these grounds, we find it useful to consider the evidence that was considered before the trial court and reevaluated by the first appellate court in dismissing the appellant’s first appeal. 17.The prosecution called 3 witnesses in a bid to prove that the appellant was convicted of the offence that he was charged with. PW1, Wesley Kemei, the complainant, testified that on 19th December 2018, at 10:00 p.m, he bought soap from Kinderet camp. He was left with Kshs. 3,750.00 after the purchase. On his way back, PW1 asked some people to hold his soap as he looked for credit. On return, he did not find them. He then met Desmond Langat who asked him why he was moving so fast. Walking ahead, PW1 met the appellant who, together with Desmond Langat, hit him on the shoulder. The appellant then tripped him to the ground and stole Kshs. 3,750.00 from PW1 as well as his belt. After the ordeal, PW1 reported the matter to an elder and later Angata police post. PW1 later went to Angata Health Centre to treat his hip, back and upper part of his face, alleging that he had been injured as a result of the ordeal. 18.PW1 recalled that he was able to recognize the appellant, who had been his neighbour, together with Desmond, with the aid of moonlight. He also testified that he was rescued by the appellant’s mother. At this juncture, PW1 was stood down to amend the charges to the present offence. 19.When brought back to the stand, PW1 testified that he was assaulted by Desmond Langat and Julius Tanui. He was beaten using a metal bar and a bottle until he fell unconscious. He testified that the appellant had a torch that helped him see his assailants very well. Before falling unconscious, PW1 testified that the appellant demanded money from him and took Kshs.700.00 from him. The ordeal lasted 10 minutes. He was later rescued by the appellant’s mother and taken to Angata Hospital. 20.During his cross examination, PW1 admitted that he was drunk during the ordeal, but not very drunk. He had been drinking at Angata. It was also rainy and muddy. He was emphatic that it was the appellant and Desmond Langat who attacked him. He had no grudge against them. That he was taken to hospital by Tanui at 3:00 a.m. 21.PW2, Stanley Ngeno, a village elder, testified that he was at home on 20th December 2018 when he received information that the complainant had been robbed by unknown persons. The offence occurred at 10:00 a.m. He visited the crime scene but no one else knew that the offence had occurred. 22.At this juncture, the prosecution declared him a hostile witness and he was cross examined. In his cross examination, he stated that he was visited by the complainant and noticed that he had an injury on the forehead but with no blood. The complainant explained to him that he was hit by a bottle and a walking stick. He was attacked at 10:00 p.m. and went to hospital thereafter. He then reported the matter at the police station after visiting the scene. He maintained that he was not bridling lies. He added that the complainant was attacked by Kapkem. His statement dated 21st December 2018 was adduced in evidence. 23.PW3, PC Ngala Mumbo, the Investigating Officer, stationed at Angata Police Station, testified that the complainant reported the incident at 10:00 p.m. on 22nd January 2019. That after being robbed of Kshs. 3,700.00, the complainant gained consciousness and raised an alarm. However, the attackers had already fled the scene. The appellant was subsequently arrested and charged after being identified by the complainant. It was further confirmed that the incident occurred at night. 24.At the close of the prosecution’s case, the trial court formed the opinion that the prosecution had established a prima facie case against the appellant. He was placed on his defence and gave sworn evidence. He testified that he did not know the complainant or PW2 and only met them during his trial. He denied that he committed the offence. His alibi defence was that on the said night of the attack, he was guarding maize at the Kuria border of Kenya and Tanzania. He opined that it was possible that the complainant identified him by mistake because the offence occurred at night. In order for the prosecution to sustain a conviction on a charge of robbery with violence, the following crucial ingredients must be established as set out in section 296 (2) of the Penal Code:“If the offender is armed with any dangerous or offensive weapon or instrument, or is in the 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.” 25.Against that background, we postulate that the following issues are for determination before us: whether the evidence of PW2 was credible; whether the appellant was properly identified as the perpetrator; and whether the evidence of PW1, as a single identifying witness could sustain a conviction. 26.On the first issue, the trial court considered that PW2 was a hostile witness. It then observed his witness statement as follows:“A look at the statement presented to the police corroborates the complainant's evidence in this case. Although he did not see any blood his statement states the complainant was bleeding when he came to his home to report the incident.The statement does state the names of his attackers Leonard Langat alias Kopku and Wesley Kiplangat the accused who inflicted injuries on him using a bottle while Leonard used a metal rod and walking stick.” 27.In its analysis, the trial court relied on the evidence of PW2 to state that the complainant was bleeding after the ordeal. The court relied on his witness statement which in its analysis, corroborated the evidence of the complainant. The first appellate court made no commentary, only noting that he was treated as a hostile witness. What was the import of his evidence? 28.In Batala vs. Republic (1974) EA. 402 the court held that:“The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile and it can be given little, if any, weight”. 29.This Court in Abel Monari Nyanamba & 4 other vs. Republic [1996] eKLR held as follows:“In Coles v. Coles, (1866) L.R. 1P. &D. 70, 71, Sir J.P. Wilde said: -“A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.’In Alowo v. Republic [1972] EA at page 324 the predecessor of the Court said: -“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.’The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could find a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt. The inevitable conclusion after PW4 had been declared a hostile witness was that he became an unreliable witness, whose evidence would be rejected as untrustworthy. He was discredited completely. In our view, PW4 was substantially an unreliable witness and all parts of his evidence should have been rejected. It must follow, therefore, that nothing PW4 said in Court could be accepted against any of the appellants.” (underline ours) 30.When PW2 was cross examined by the prosecution, we do not think that his credibility was salvaged. On one hand, he stated that the complainant was bleeding, something he said to the contrary when testifying at trial, when he stated that the complainant suffered an injury but was not bleeding. PW2 also stated that the complainant was attacked by unknown persons and later stated that he was attacked by Kapkem. It was later recorded by the trial court that PW2 stated that the complainant was attacked by Leonard Langat alias Kopku and Wesley Kiplangat. 31.Gathered from the foregoing evidence, we find that the said witness was too unreliable and the cross examination did not discharge any doubt already cast. Clearly, from the evidence it is clear that for reasons known to himself, PW2 was cagey and deliberately untruthful on the events of that night. His evidence therefore was unreliable and we dare say of no probative value. For those reasons, we come to the conclusion that his evidence was totally unreliable and should not have been considered at all. 32.Having said that, this leaves us with the testimony of PW1, the single identifying witness. We note that the trial court warned itself on the dangers of relying on the testimony of a single identifying witness on more than one occasion. That observation was also noted by the first appellate court. This is an essential and very crucial step in a criminal trial process as was held by this Court in Maitanyi vs. Republic [1986] KLR 198, in the following words:“1.Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.2.When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description.3.The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before decision is made.4.Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction.” 33.According to PW1, on 19th December 2018, at 10:00 p.m., he was on his way back home when he met Desmond Langat. As they were walking, he was attacked by the said Desmond Langat and the appellant, who hit him on the shoulder. He was then tripped to the ground where the assailants stole Kshs. 3,750.00 and his belt. 34.After the ordeal, PW1 reported the matter to an elder and later Angata police post. PW1, later went to Angata Health Centre to treat his hip, back and upper part of his face, alleging that he had been injured as a result of the ordeal. He recalled that he was able to recognize the assailants, with the aid of moonlight and the torch that the appellant had during the ordeal. 35.When PW1 was brought back to the stand, after the charge sheet was amended, his evidence was that he was assaulted by Desmond Langat and Julius Tanui. He was beaten using a metal bar and a bottle until he fell unconscious. He then stated that the appellant took Kshs. 700.00 from him. That the ordeal lasted 10 minutes. He also admitted that he was drunk but not too much. Further, it was a rainy and muddy night. Though he stated earlier that the appellant’s mother took him to hospital, he also alleged that it was Tanui who escorted him to hospital. 36.In establishing the credibility or otherwise of the complainant’s evidence, the trial court and the first appellate court stated that though the complainant was drunk, it did not affect his ability to identify the culprit. We think that the state of the complainant being drunk was a critical issue that ought to have been given more weight as to establish the faculties of the complainant when he was attacked. 37.In the persuasive decision of the South African High Court in S v Chretien 1981(1) SA 1097 at 1104, the court distinguished various degrees of drunkenness, by quoting the decision in R v Bouke 1916 TPD 303 to 305 as follows:“It is a well-known fact that there are various degrees of drunkenness. A man may drink a small amount of liquor, the effect of which upon him and make him act differently to the way in which he would act if he were absolutely sober, but, at the same time, drinking under such circumstances, would not be in any way sufficient to prevent his controlling himself, or have any influence upon his intentions. If he drinks more than this, his faculties become more and more dulled and obscured, and a stage is subsequently reached at which he cannot be said to have any intention at all.” 38.In this case, no medical evidence was adduced before the trial court as to determine the degree of drunkenness the complainant had. However, what is also informed to the Court is that the conditions were rainy and muddy. Possibly so, those conditions would not be, in plain sight, suggestive to clear visibility. Could it then have been possible for the complainant to mistakenly identify the appellant as was suggested? 39.We pose that question so because during the testimony of PW1, he firstly stated that he was robbed of Kshs. 3,750.00. He then later stated that he was robbed of Kshs. 700.00, contrary to the particulars set out in the charge sheet. Secondly, PW1 testified that he was attacked using a metal bar and a bottle while the charge sheet read that he was attacked with a metal bar, a stick and a bottle. If he was indeed also attacked by a stick, we find that PW1 ought to have recalled that. 40.Crucially, we also do not have medical evidence of PW1 as to corroborate that indeed he sustained injuries as he alleged. It is only his evidence that he was injured during the ordeal. How then can we ascertain from the evidence adduced before the trial court that the appellant was indeed attacked and injured as a result of the attack? 41.From the above, it is our view that the circumstances surrounding the identification of the culprit were not too favorable as to establish beyond reasonable doubt, that the appellant was the perpetrator of the offence. There is doubt in his identity and the paucity of the evidence adduced also leads us to cast doubt if the appellant committed the offence that he was charged with. 42.The sole identifying witness, in his own admission, had a drinking spree before the incident. It was not a drinking spree of water or tea but alcohol. The only evidence of the drunkenness is by the complainant only. How reliable and safe is such evidence? Is this the kind of evidence that will make a person be led to the gallows? We think not. This is not a safe conviction as the evidence relied upon by the prosecution is thin and shaky. 43.In view of the foregoing, we find that the conviction given by the trial court and upheld by the first appellate court was unsafe. Accordingly, we find that the appeal has merit. It is allowed. The appellant’s conviction is hereby quashed and his sentence set aside. 44.We also hasten to add that the appellant certainly took a big gamble when he decided to proceed with the appeal despite the notice of enhancement, that threatened him with the death sentence, hanging over his head like the proverbial sword of Damocles. In the end, he stands vindicated. We order that the appellant shall forthwith be set at liberty unless otherwise lawfully held.It is so ordered. DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF JULY, 2026.J. MATIVO…………………………………………JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.…………………………………………JUDGE OF APPEALMURUNGI B. KAIRARIA…………………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR