https://new.kenyalaw.org/akn/ke/judgment/keca/2026/920

Mwanzia alias Patrick v Republic (Criminal Appeal 70 of 2022) [2026] KECA 920 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 920 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal 70 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Kimanzi Mwanzia alias Patrick Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Garsen (Nyakundi, J.) delivered on 17th December 2021 in HCCA NO. 62 OF 2018) Judgment 1.This is a second appeal from the Judgment of the High Court of Kenya at Garsen (R. Nyakundi, J.) dated 17th December 2021 in Criminal Appeal No. 62 of 2018 in which the learned Judge upheld the Judgment of the Principal Magistrate’s Court at Hola (A. P. Ndege, PM) dated 2nd October 2018 in Criminal Case No. 116 of 2017. 2.The Appellant, Kimanzi Mwanzia Alias Patrick and another, were charged with the offence of Robbery with Violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. The particulars of the offence were that, on the night of 24th and 25th July 2017, in Chardende market, in Bura-Tana sub-County within Tana-River County, jointly with others not in court while armed with a dangerous weapon, namely a binding wire, they robbed Issa Adhow Shongolo of one motorcycle registration No. KMDU 440Z make BAJAJ model Boxer 150 red in colour with yellow cover valued at Kshs. 118,000 and, immediately after the time of such robbery, killed the said Issa Adhow Shongolo (the deceased).**// 3.The Appellant denied the charges and the matter proceeded to hearing where the prosecution called 13 witnesses. 4.Abdirashid Ismail (PW1)**//, a government worker from Charidende, bought motorcycle registration number KMDU 440Z for the deceased in December 2016 to assist him take care of his ailing father, and any surplus be given to him. The motorcycle was used until 25th July 2017 when, whilst performing his duties at Charidende barrier, PW1 heard a police officer inform the local chief that a dead body had been seen nearby. Together with a taxi driver, PW1 proceeded to the scene at Jajaro area in Bura where they saw the deceased’s body tied with binding wire around the neck. The police from Bura arrived and took the body away. On 28th August 2017, CID officers summoned PW1 to Bura to confirm that the motorcycle was associated with the deceased. The witness identified the motorcycle and provided the original purchase receipt dated 9th June 2016, the logbook, a transfer form from Auto Industries Ltd, photographs of the deceased, the binding wire, the motor cycle’s keys and confirmation identification documents. He stated that he had no evidence connecting the Appellant to the murder. 5.On 24th July 2017, at about 7:30 p.m., Mohamed Abdi (PW2), a boda boda rider from Charidende, was in front of Mwangi’s Kinyozi with the deceased when the Appellant and another man came and requested to be transported to Bilbil, claiming that they needed to visit a sick person. After consulting on the fare with the deceased, they retreated to discuss between themselves. PW2 left momentarily to attend to another passenger and, on return, found that both the deceased and the two passengers had left. The next day, PW2 received a call from one Abdulahi reporting that the deceased had been killed over his motorcycle. PW2 promptly went to the deceased’s home to report the incident, and assist in identifying the deceased’s body and the motorcycle. He observed that the Appellant wore a necklace, which assisted in identifying him. PW2 corroborated the presence of the binding wire around the deceased’s neck and the motorcycle in court. He recognized the Appellant well and confirmed seeing him with the deceased just before his death; and that he worked in the gypsum mines, and had known him for 3 months. 6.Deko Bashir (PW3), a shepherd from Jajabo, was herding sheep on 25th July 2017. He noticed that one of his sheep was missing, prompting him to follow the hoofmarks which led to drag marks along the road. Suddenly, he saw a shoe, and then came upon a body lying under a tree. He retreated to notify elders, including Mzee Ali, who directed him to show the body to the village chief and the police. PW3 described the binding wire around the deceased’s neck and corroborated the photographic evidence. Deko informed Ali Abdi Isaack (PW4), a farm worker from Bilbil, of the body he discovered, and they went to the scene together with village elders. Idris Jiro Dille (PW5)**//, a chief from Dukamoto Location, confirmed receiving information from Ali Abdi about a body discovered in Jajabo near a farm. 7.On 25th July 2017, at around 7.00 p.m., PC. Abdikadir Hassan No. 96407 (PW6) from Bura Police Station, attached to Charidende police post, was on duty at a roadblock between Hola and Garissa at Charidende market with PC. Chebet when he received a phone call from the area assistant chief who informed him that a worker of Ali Abdi had seen a human body lying in the area between Charidende and Jajabo. He told them to guard the body from wild animals and alert the O.C.S., Bura. 8.Yussuf Ade (PW7), a driver from Charidende and younger brother to the deceased, Issa Adow, was informed on the morning of 25th July 2017 of this brother’s death. He went to the mortuary in Garissa and identified the body which had a wire tied around the neck. He also identified the deceased’s motorcycle, which was presented in court. PW7 stated that, on the day of the murder, he had met the deceased while riding the motorcycle. 9.On 27th July 2017, Stephen Kundi (PW8) boarded a motorcycle ridden by the Appellant headed to Nguni from Kiambere. While at Kiambere, the Appellant requested him for a place to keep the motorcycle for the night. PW8 directed him to Michael Kirimi (PW9), a businessman from Kiambere Gire Market, who confirmed that, at around 7.30 p.m, PW8 and the Appellant parked the motorcycle at his place, and that the Appellant was to collect the motorcycle on the following day. The Appellant refused to leave the ignition keys to the motorcycle with him. 10.On 28th July 2017, Cpl. Maurice Kohome No. 68933 (PW12) and Jonathan Kangogo (PW13) from Kiambere Police Station, recovered the motorcycle from PW9’s place in Ngiri market, Kiambere area in Embu. On 19th August 2017, PW13 was at the police station when he was informed by PW9 that the person who had left the motor cycle at his place, the Appellant, had come to collect it. 11.PW13 went to the market and arrested him. On searching him, he found the ignition keys for the motor cycle and a mobile phone. 12.On 31st July 2017 at around 4 p.m, APC Erick Muragurgo (PW10) and Cpl Josephat Murage, No. 64419 (PW14), from CID Bura, received the report of the death and possible robbery. He visited the scene and, after confirming the deceased’s death, he commenced investigations. The Appellant was later charged with the offence. 13.When placed on his defence, the Appellant stated that he was arrested for no reason on 17th August 2017 while trading in chickens with his brother at Kiambere market. He claimed that the officers demanded money from him so as not to implicate him with the serious offence; and that they detained him for a prolonged period at the station while soliciting for the money. It was alleged that he was working at Chardende and was therefore to be handed over to the officers at Bura. He denied committing the offence and contended that he was not arrested with any exhibit. 14.The trial magistrate, on considering the evidence, found the Appellant guilty of the offence of robbery with violence as he was identified by witnesses whilst seeking to hire the deceased’s motorcycle shortly before the deceased was killed; that he was later found in possession of the stolen motorcycle and its ignition keys, but offered no reasonable explanation for how he came to have them. The magistrate applied the doctrine of recent possession, observing that possession of recently stolen property creates a rebuttable presumption of guilt. The court proceeded to convict the Appellant of the offence and sentenced him to suffer death. 15.Aggrieved with the trial magistrate’s decision, the Appellant filed an appeal to the High Court on the grounds that he was not provided with an advocate; that identification was flawed; that he was convicted based on hearsay and contradictory evidence; and that the sentence was harsh and excessive. 16.The High Court held that the Appellant was properly identified through recognition by witnesses who were familiar with him, and who connected him with being in possession of the deceased’s motorcycle, all or which rendered an identification parade unnecessary. 17.On the application of the doctrine of recent possession, the learned Judge confirmed that it was correctly applied since the Appellant was found with the deceased’s motorcycle and the ignition keys shortly after the deceased was killed, and he failed to provide any explanation to rebut the presumption of guilt. 18.However, the Court found the mandatory death sentence imposed by the trial court to be unconstitutional and disproportionate and substituted the death sentence for a custodial sentence of 25 years’ imprisonment effective from the date of arrest. 19.Aggrieved, the Appellant has filed an appeal to this Court on grounds that: the learned judge was in error in not considering that there was no proper identification at the scene of crime; in failing to consider that the case was not properly investigated; and in failing to consider his defense. 20.In his supplementary record of appeal, the Appellant faulted the learned Judge for upholding the Appellant’s conviction premised on the doctrine of recent possession, which was not proved, and in failing to appreciate that the circumstances that existed at the time of the offence could not support a positive identification; and in failing to appreciate that the charge was not proved beyond reasonable doubt by the prosecution as provided by Section 107 of the Evidence Act. 21.The parties filed written submission and, when the Appeal came up for hearing on a virtual platform, learned counsel Mr. Ngumbao appeared for the Appellant while learned Assistant Director of Public Prosecution learned counsel Ms. Mutua appeared for the Respondent. 22.It was the Appellant’s submission that there was no eye-witness to the commission of the offence, and that the trial court wrongly relied on the doctrine of recent possession to connect him with the robbery and death of the deceased; that, further, the learned Judge failed to warn himself that the Appellant would have been an innocent handler of property that he did not know was stolen. 23.It was further submitted that the evidence of PW2 did not state which two passengers were carried by the deceased, as he was not present when the deceased and the alleged passengers left the stage; that this was hearsay evidence that could not be relied upon to corroborate otherwise suspicious evidence, and that, therefore, the prosecution failed to establish their case against the Appellant beyond reasonable doubt. 24.The Appellant also submitted that both the trial court and the first appellate court failed to properly re-evaluate the entire evidence, given the glaring disparities in the prosecution’s case that raised doubt as to the Appellant’s guilt; that the prosecution did not demonstrate that the Appellant was armed with a dangerous weapon, nor was there reliable evidence placing him in the company of another assailant during the robbery; that, further, although identification was by a single witness, PW2, it is contended that the courts below did not subject this evidence to the necessary caution and test; that the witness did not provide a detailed description of the Appellant,, and did not state how well he knew him before the incident, and that the persons who allegedly connected the Appellant to the deceased were not called to testify. The appellant therefore submits that the purported identification amounted to dock identification with no independent corroboration. 25.The Appellant faulted the first appellate court for upholding the conviction on the basis of the doctrine of recent possession. It was asserted that the prosecution failed to establish all the necessary conditions for application of the doctrine, including positive proof that the recovered motorcycle belonged to the deceased or the complainant in the case; that the registered owner was Auto Industries Ltd, and that the logbook had not been transferred, and no formal complaint of theft had been lodged by PW1. As such, the Appellant contended that the property could not be said to have been stolen from the complainant as required under the doctrine. The courts below improperly shifted the burden to the Appellant to explain possession before the foundational facts were proved. The Appellant maintained that, even were the evidence on record, taken at its highest, it could only suggest handling stolen property and not the offence of robbery with violence. 26.On their part, learned prosecution counsel submitted that the prosecution had proved its case to the required standards; that the Appellant was identified by PW2, who testified that he had known him for about 3 months before the incident; and that he was the one who was last seen with the deceased at the stage. 27.Counsel submitted that the Appellant was convicted on the basis of the doctrine of recent possession as there was proof that the stolen motor cycle that belonged to the deceased was found with the Appellant, and that it was recently stolen from him; that they proved their case to the required standards; and that the appeal be dismissed. 28.As was stated in Karingo vs Republic [1982] KLR 214, a second appellate court will not, as a general rule, interfere with concurrent findings of fact of the two courts below unless they are shown not to have been based on evidence. 29.And in the case of Chemagong vs Republic [1984] KLR 213 at page 219, this Court held, inter alia, that:“a second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.” 30.From the Record and the arguments advanced by the parties, the appeal turns on the reevaluation of four central questions. The first is whether the prosecution proved all the necessary elements of the offence of robbery with violence under Section 296(2) of the Penal Code. 31.Second, whether the Appellant was properly identified, and whether the court below considered his defence. 32.Third, whether the courts below correctly invoked and applied the doctrine of recent possession to sustain the conviction. 23.And, finally, whether upon a fresh and holistic appraisal of the evidence, the conviction can be said to have been safe and founded on proof beyond reasonable doubt. 24.On the first question as to whether the offence of robbery with violence was proved, Sections 295 as read with Section 296(2) of the Penal Code provides:“295.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 296 (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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 25.Essentially, for the offence of robbery with violence to be founded, the elements as enumerated in Section 296(2) of the Penal Code required to be proved are that the offender is: i) armed with any dangerous or offensive weapon or instrument; or ii) in the company of more than one person or persons; or; iii) immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person. The elements for the offence of robbery with violence were set out in the case of Johanna Ndung’u vs. Republic [2020] eKLR thus:“(i)Therefore, the existence of the afore described ingredients constituting robbery are pre-supposed in three sets of circumstances prescribed in section 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, or2.If he is in company with one or more other person or persons or3.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.” 26.Proof of any one of these elements is sufficient to sustain a conviction for robbery with violence. See the case of Dima Denge Dima & Others vs Republic [2013] eKLR. 27.It is not in dispute that the deceased was assaulted and dispossessed of the motorcycle he was riding on the material day, which establishes that the offence of robbery with violence indeed occurred. What remains in contention is whether the Appellant was the perpetrator. 28.The Appellant has argued that he was not properly identified as the person who robbed the deceased of the motor cycle ; that the identification by PW2, a single witness, was not subjected to the necessary caution and test; that the witness did not provide a detailed description of the Appellant, and neither did he state how well he knew him before the incident; and that the persons who allegedly connected the Appellant with the deceased were not called to testify. 29.A reanalysis of the record does not disclose that any of the prosecution eyewitnesses saw the actual robbery. So, was the Appellant properly identified as the person who robbed the deceased? A consideration of the record shows that both the trial court and the High Court were satisfied that the Appellant was identified by recognition. 30.Upon our reevaluation of the evidence, the record shows that, on the fatal night, the Appellant was seen by PW2 consulting with the deceased to transport him to visit a sick relative. The Appellant was a person known to PW2 for about 3 months. The next day, the deceased was found dead and his motorcycle had disappeared. 31.With PW2 having identified the Appellant as the person who was last seen with the deceased, the courts below were entitled to draw an inference that the Appellant was properly identified as the person responsible for the robbery. 32.But that is not all, both the trial court and the High Court invoked the doctrine of recent possession to find that it was the Appellant, and none other that robbed the deceased. 33.The circumstances under which the doctrine of recent possession may be applied were clearly set out in the case of Athuman Salim Athuman vs Republic [2016] eKLR where this Court held that:The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how he came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver”.And in the case of Simon Kanui Mwendwa vs Republic [2020] eKLR this Court stated:It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first that the property was found with the suspect, secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one to the other.”As stated by the Supreme Court of Uganda in the case of Bogere Moses & Another vs. Uganda, Cr. App. No. 1 of 1997 that:It ought to be realized that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raises a very strong presumption of participation in the stealing, so that if there is no innocent explanation of the possession, the evidence is even stronger and more dependable than eye witness evidence of identification in a nocturnal event. This is especially so because invariably the former is independently verifiable, while the latter solely depends on the credibility of the eye witness.” 34.In effect, the doctrine of recent possession requires the prosecution to prove: that the property was stolen; that the property was found in the possession of the accused; that the possession was recent; and that the property was positively identified as belonging to the complainant. See also Gideon Meitekin Koyiet vs Republic [2013] KECA 231 (KLR). 35.In applying the doctrine to the facts of the instant case, PW2’s evidence was that he was present when the Appellant and the deceased were negotiating to transport the Appellant to Pilipili shortly before the deceased was attacked and killed. On 27th July 2017, PW8 boarded a motorcycle ridden by the Appellant headed to Nguni from Kiambere. While in Kiambere, the Appellant had requested PW8 for a place to park the motorcycle. PW8 directed him to PW9, who agreed to keep it. PW9 confirmed this account stating that the Appellant promised to return to collect it the following day. On 19th August 2017, PW13 was informed by PW9 that the person who had left the motorcycle at his place, the Appellant, had come to collect it. PW13 went and arrested him and, on searching him, found the ignition keys for the motorcycle and a mobile phone in his possession. 36.Our reinterrogation of the evidence leads us to conclude that the prosecution adduced credible and uncontroverted evidence that connected the Appellant to the offence through the recovery of the deceased’s motorcycle and the ignition keys found in his possession shortly after the fatal robbery. Taken together, the testimonies of PW2, PW8, PW9 and PW13 demonstrate that the Appellant was in actual possession of the deceased’s motorcycle shortly after the deceased was violently robbed and killed. The deceased’s motorcycle was unmistakably traced to the Appellant soon after the robbery. There was sufficient documentation that was supportive of the ownership of the motorcycle by PW1. The proximity in time between the offence and the recovery of the stolen property strengthened the presumption that the Appellant was either the perpetrator or a participant in the robbery. The Appellant neither offered a plausible explanation of how he came to possess the motorcycle nor rebutted the strong inference of guilt arising from that possession. On the basis of the evidence on record, we are satisfied that the doctrine of recent possession was properly applied by the courts below to the circumstances of the case. 37.The Appellant has also complained that his defence was not taken into account. Upon reevaluating the record, it can be discerned that the Appellant’s defence was taken into account and found to be unsatisfactory. On our part, when we weigh out the Appellant’s defence against the overwhelming prosecution evidence, we find that it did not in any way dislodge the prosecution’s case. This ground is without merit. 38.Finally, in view of the evidence adduced before the trial court, as properly reevaluated by the High Court, we are satisfied that, based on the identifying evidence of PW2, and the doctrine of recent possession of the motorcycle and the keys found in his possession, that the Appellant was the person responsible for the violent robbery. We find that the prosecution proved its case to the required standard and, as a consequence, we have no reason to interfere with the concurrent findings of the trial court and the first appellate court. 40.In sum, the appeal is devoid of merit and is dismissed in its entirety, and we hereby uphold the conviction and sentence.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA C.Arb, FCIArb.………………………………JUDGE OF APPEALG.W. NGENYE-MACHARIA…………………………JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR