Chepkwony alias Ngetich Oria v Republic (Criminal Appeal E057 of 2022) [2026] KEHC 8746 (KLR) (23 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CRIMINAL APPEAL NO. E057 OF 2022** **JUSTUS CHEPKWONY ALIAS** **NGETICH ORIA ……………………….…………….…...… APPELLANT** **VERSUS** **REPUBLIC ……………………………………………….....RESPONDENT** *(From the Conviction and Sentence in Criminal Case Number 1040 of 2020 by Hon. Kiniale L. in the Principal Magistrate’s Court at Bomet)* **JUDGEMENT** 1. The Appellant alongside another was charged with two counts. On the first count, he was charged with robbery with violence contrary to **section 295** as read with **section 296(2) of the Penal Code.** The particulars of this offence were that on 29th August 2020 at around 2030 hours in Bomet Township within Bomet County , robbed Cheruiyot Kiprotich of 1 briefcase green in colour containing assorted clothing, 1 pair of black leather shoes, 1kg of sugar, 1kg of tea leaves, 1 piece of washing bar soap, cash money 500/= and 1 white sack containing 25kgs of Irish potatoes all valued at Kshs 3,950/= and immediately before the time of such robbery beat the said Cheruiyot Kiprotich. 2. On the second count, he was charged with grievous harm contrary to **section 234 of the Penal Code.** The particulars of this offence were that on 29th August 2020 at around 2030 hours in Bomet Township within Bomet County, jointly unlawfully did grievous harm to Cheruiyot Kiprotich. 3. The Appellant faced an alternative charge to count 1 of handling stolen property contrary to **section 322(1) as read with section 322 (2) of the Penal Code.** The particulars of the offence were that on 29th August 2020 at around 2030 hours at Soi Garage in Bomet Township within Bomet County otherwise than in the course of stealing jointly dishonestly retained 1 briefcase green in colour, 1 t-shirt and 25kgs of Irish Potatoes knowing them to be stolen property. 4. The Appellant pleaded not guilty to the counts before the trial court and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case, while the Appellant testified and closed his case. 5. At the close of the prosecution case, the trial court ruled that a *prima facie* case had been established against the Appellant and he was put on his defence. 6. At the conclusion of the trial, the Appellant was convicted of the first count of robbery with violence and sentenced to 20 years imprisonment. He was also convicted of the second count of grievous harm and sentenced to serve 20 years imprisonment. The sentences were to run concurrently. 7. Being dissatisfied with the Judgment dated 21st September 2022, the Appellant, Justus Chepkwony appealed to this court against his sentence and conviction. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh and come to my own conclusion. 8. I hereby procced to summarise the Prosecution’s and Respondent’s case in the trial court as well as their respective written submissions in the present Appeal. **The Prosecution’s Case.** 1. It was the Prosecution’s case that on the material day (29th August 2020), the Appellant and another violently robbed Cheruiyot Kiprotich (PW1) off his 1 briefcase green in colour, 1 pair of black leather shoes, 1kg of sugar, 1kg of tea leaves, 1 piece of washing bar soap, cash money 500/= and 1 white sack containing 25kgs of Irish potatoes all valued at Kshs 3,950/= before beating him up. The victim (PW1) stated that he was attacked by two men at the boda boda stage in Bomet town as he sourced for transport home. PW1 stated that the Appellant slapped him across his face and hit him in his groin before robbing him. 2. It was the Prosecution’s case that the Appellant was positively identified by the victim (PW1) through the presence of sufficient street lighting. 3. In their written submissions dated 30th March 2026, the Respondent submitted that it was evident that personal violence was applied to the complainant as he was slapped twice and hit in the groin resulting in grievous harm. The Respondent further submitted that the Appellant stole a sack of potatoes and a green travelling bag. 4. It was the Respondent’s submission that there was sufficient evidence that the assailants were two in number. That their evidence was sufficient to prove that the 1st count of robbery with violence. 5. The Respondent submitted that the second count ought to have been framed as an alternative charge. That the offence of grievous harm formed part and parcel of the offence of robbery with violence and it was simply a duplicity. The Respondent further submitted that since the sentences were running concurrently, there would be no prejudice occasioned to the Appellant. **The Appellant’s Case.** 1. The Appellant (DW1) denied committing the offence. DW1 testified that on the material day, he went to a bar after work to drink and had an altercation with the Appellant. DW1 further testified that he fought with the Appellant and the Appellant caused him to lose some teeth. 2. It was DW1’s testimony that the arresting police officer had a grudge with him as he always sought bribes from him and further threatened to jail him. 3. The Appellant filed submissions that were essentially mitigation on his sentence. He submitted that he was remorseful, repentant and had rehabilitated while in custody. That he had three school going children who depended on him and further that he was a first offender. The Appellant further submitted that the court should consider awarding him a non-custodial sentence. 4. I have gone through and given due consideration to the trial court’s proceedings, the home-made grounds of appeal filed on 1st December 2022, and the respective parties’ written submissions. The following issues arise for my determination: - 5. Whether the Prosecution proved its case beyond reasonable doubt. 6. Whether the Defence casts doubt on the Prosecution case. 7. Whether the sentence was harsh and excessive. 8. **Whether the Prosecution proved its case beyond reasonable doubt.** 9. Under this heading, I shall cover both count 1 and 2. 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**. **Section 295 of the Penal Code** defines robbery as: - **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.** 1. **Section 296 of the Penal Code** states as follows: - **(1) 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.** 1. The Court of Appeal in the case of **Johana Ndungu v Republic [1996] KECA 187 (KLR**) set down the ingredients of robbery with violence by stating thus: - ***“In order to appreciate properly as to what acts constitutes an offence under section 296 (2) one must consider the sub-section in conjunction with s.295 of the Penal Code. 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 before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:*** ***1. If the offender is armed with any dangerous or offensive weapon or instrument, or*** ***2. If he is in company with one or more other person or persons, or*** ***3. 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.”*** 1. More recently, Mrima J. in **Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR)** elaborated on the offence of robbery with violence as follows: - ***“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.*** ***On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -*** ***i. The offender is armed with any dangerous or offensive weapon or instrument, or*** ***ii. The offender is in the company of one or more other person or persons, or*** ***iii. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person”*** 1. The elements of robbery with violence are disjunctive and not conjunctive. This was explained by the Court of Appeal in **Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR**) where it held: - ***“…………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 (sic!) an offence of robbery with violence…….”*** (Emphasis mine) 1. Cheruiyot Kiprotich (PW1) testified that on the material day, he was robbed off his 1 briefcase green in colour, 1 pair of black leather shoes, 1kg of sugar, 1kg of tea leaves, 1 piece of washing bar soap, cash money 500/= and 1 white sack containing 25kgs of Irish potatoes all valued at Kshs 3,950/= by the Appellant and another. PW1 further testified that he met two police officers on the way, reported what had happened to him and led the officers to the house where he saw his two attackers enter. When PW1 was cross examined, he reiterated his testimony and further testified that the Appellant begged for forgiveness when he was arrested. 2. No. 113734 PC Daniel Keroe (PW2) and No. 100544 PC Joshua Mwaniki (PW4) testified that they met the Appellant on the road and the Appellant reported what had transpired. PW2 and PW4 further testified that they were directed by the Appellant to a house where the attackers has sought refuge and found the Appellant and another in the process of dividing the loot. PW2 testified that they recovered a green brief case bag, purple t-shirt and a sack of potatoes before they arrested the Appellant and his accomplice. PW4 corroborated this testimony on recovery of the items and arrest of both accomplices. The testimonies of PW2 and PW4 (arresting officers) remained uncontroverted upon cross examination. 3. No. 90923 PC Patrick Nyaoke (PW5) who was the investigating officer testified that summarized the details of the commission of the offence by the Appellant and his accomplice and produced photographs of the green brief case and Irish Potatoes as **P. Exh 3a, b, c** and **d**. PW5’s testimony was uncontroverted upon cross examination. 4. The evidence above indicated that the Appellant and his accomplice were caught in possession of the victim’s assorted items. The arresting officers’ (PW2 and PW4) evidence tallied with the victim’s evidence as to the identity of the victim’s assorted items. I am satisfied that goods capable of being stolen had been stolen. 5. As to the identity of the Appellant and his accomplice, the victim (PW1) testified that he saw the Appellant and his accomplice due to the presence of street lighting. The victim described the Appellant as a tall man and his accomplice as a short man who had a cap. The victim’s testimony on the identity of the Appellant and his accomplice was uncontroverted upon cross examination. Further, as I have stated earlier, the Appellant and his accomplice were found in possession of the stolen items and this helped form the inescapable conclusion that the Appellant and his accomplice robbed the victim. In short, the Appellant and his accomplice were positively identified. 6. As to the use of force or causing harm, the victim testified that the Appellant slapped him on his cheek and hit him in his groin. Geoffrey Kirui (PW3) testified that he examined the victim and found that he had soft tissue injuries on his head and neck and further that he had a swollen manhood and testicles. PW3’ s testimony on the nature of injuries suffered by the victim remained uncontroverted upon cross examination. It is my finding therefore that personal violence was occasioned to the victim in the midst of the robbery. 7. Flowing from the above, I am satisfied that the Prosecution sufficiently proved the elements of the offence of robbery with violence as contained in **section 296 (2) of the Penal Code.** 8. The Appellant was also charged with the offence of grievous harm. **Section 4 of the Penal Code** states as follows: - **“grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;** 1. I am persuaded by Kemei J. in **Pius Mutua Mbuvi v Republic [2021] KEHC 9695 (KLR),** where he held that: - ***“…………For the appellant to be convicted of the offence of doing grievous harm c/s 231 as read with section 234 of The Penal Code, the prosecution had to prove each of the following essential ingredients beyond reasonable doubt;*** ***a. The victim sustained grievous harm.*** ***b. The harm was caused unlawfully.*** ***c. The accused caused or participated in causing the grievous harm……….”*** 1. In **John Oketch Abongo v Republic [2000] KECA 300 (KLR**), the Court of Appeal held that: - ***“Whether or not grievous harm or any other form of harm is disclosed must be a matter for the court to find from the evidence led and guided by the definition in the Penal Code. A court will be assisted by medical evidence given in coming to the conclusion on the nature and classification of the injury. In many cases the courts have accepted and gone by the findings and opinions in the medical evidence. But, in appropriate circumstances, the court is at liberty to form its own opinion, having regard to the evidence before it as to the nature and classification of the injury.”*** 1. The nature of the injuries sustained by the victim have been discussed earlier in this Judgement and the medical evidence tendered by the clinical officer (PW3) supported the victim’s testimony. In my view, the soft tissue injury suffered by the victim on his head and neck and his swollen manhood were not in the nature of grievous harm. The injuries neither maimed the victim or threatened his life. To this end, I find that the Prosecution failed to prove this charge to the required standard. 2. The sum total of the above is that the Prosecution only proved the charge of robbery with violence. 3. **Whether the Defence casts doubt on the prosecution case.** 4. I have already set out the defence of the Appellant earlier in this Judgment. I have considered the defence carefully and I have noted that the Appellant acknowledged that he knew and fought with the Appellant but denied robbing and hitting him. The Appellant testified that the Appellant and the arresting officer set him up. I find this testimony as an afterthought because the Appellant did not raise the issue of being set up by the victim and the arresting officer when he cross examined them. 5. After considering the Appellant’s victim as a whole, it is my finding that his defence was shallow, weak and did not shake the Prosecution’s case at all which I have already found proven. 6. **Whether the sentence was harsh and excessive** 7. Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. 8. The penal section for the offence of robbery with violence is found in **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.** 1. Having considered the circumstances of this case, it is my view that the 20-year prison sentence was reasonable and just. I have no reason to interfere with the trial court’s sentence. 2. Regarding the 20-year sentence for the offence of grievous harm, the same is vacated. In this case, the Appellant does noy suffer any prejudice as the trial court stated that the sentences were to run concurrently. 3. For clarity, the 20- year sentence for the offence of robbery with violence is upheld and will run from 4th September 2020 when the Appellant was arraigned in court. 4. In the end, the Appeal has no merit and is dismissed. **Judgement delivered, dated and signed at Bomet this 23rd day of June, 2026.** **…………………………………….** **Hon. JULIUS K. NG’ARNG’AR** **JUDGE** **Judgement delivered in the presence of:** **Siele/Susan (Court Assistants).** **Ms Koech for the state (Respondent)** **Appellant:present**