https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9980

Kinyanjui & another v Republic (Criminal Appeal E211 of 2025) [2026] KEHC 9980 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9980 (KLR) Republic of Kenya In the High Court at Makadara Criminal Appeal E211 of 2025 J Wakiaga, J July 2, 2026 Between Charles Waithaka Kinyanjui 1st Appellant Japheth Omariba Nyakundi 2nd Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Criminal case No E1229 of 2018 of the Chief Magistrates Court at Makadara) Judgment 1.The appellants were charged with the offence of robbery with violence contrary to section 296(2) of the penal code the particulars of which were that on the 9th day of June 2018 at around 1100 hours along Embakasi -Utawala Road , Embakasi Division , while being the driver and conductor respectively of a motor vehicle registration No KCC675V jointly with another not before the court robbed Winfred Omari who was a passenger his mobile phone make Infinix note 4 and cash 4,000 all valued at Kshs 16,500 and immediately before the time of the said robbery used actual violence against the said Winfred Omari. 2.They were tried convicted and sentenced to life imprisonment. Being aggrieved by the said conviction and sentence they filed this appeal and raised the following grounds of appeal: 3.Directions were issued on the disposal of the appeal herein by way of written submissions and on behalf of the appellants it was submitted that in a charge of robbery with violence , the nature of violence must be specifically mentioned in the charge sheet and specifically proved by the prosecution beyond reasonable doubt as was stated in the case of Muranga & another v Republic [2025] KEHC 12442(KLR) . It was contended that the charge sheet forming the basis of conviction, the nature of the violence used on the victim was not specifically mentioned. 4.It was contended that the prosecution case was largely premised on circumstantial evidence which was uncorroborated and which left glaring gaps that were never explained in the judgement and that the alleged stolen items were not recovered from the subject motor vehicle nor found in the custody of the appellants. Further there was contradictory account on the events between PW1 and PW2 who were robbed at the same time. 5.It was submitted that the appellants were not in recent possession of the alleged stolen items yet the prosecution case was that there was unbroken sequence of the hot pursuit of the appellants soon after the robbery. 6.It was submitted that the appellants were not positively identified as the complainant had never met the appellants before the said date and that the robbery took less than five minutes and therefore the conditions were not ideal for identification as was stated in the case of Wamunga v Republic [1989] KECA 47 (KLR).At no time did the complainant give a detailed description of the assailants prior to their arrest neither did the same take down the entire number plate of the motor vehicle they were using. 7.It was contended that the contradictions and inconsistencies in the prosecution case were not satisfactorily explained in support of which the case of Juma v Republic [2024]KEHC 13439(KLR) was submitted. 8.It was contended that the appellants alibi defence which was not displaced by the prosecution witnesses and that the trial court came to a conclusion that the defence was not believable without giving reasons for the same as the burden was upon the prosecution to disapprove the same as was stated in the case of Erick Otieno Meda v republic [2019] KEHC4959 (KLR). 9.It was submitted that the evidence of a minor was admitted without proper voir dire being conducted and that the court made an assumption that since the minor was 11years old , he possessed sufficient intellect to understand the reason for his testimony and that the court did not caution itself on the dangers of reliance on the evidence of a minor and state the safeguards of how such evidence was to be received and analysed in support of this preposition reference was made to the cases of Kiune v R CAR77 of 1992 and Hussein Ali Genga v Republic [2014] KEHC6177(KLR) in which the court stated that failure by the trial court to record the terms on which he was persuaded that Pw1 understood the oath that she took in view of the fact that she was 13 was fatal to the conviction . 10.It was submitted that the court could not convict the appellants in the absence of the stolen property being recovered from the appellant as was stated in the cases of Isaac Nganga Kahinga & another v Republic [2006] e KLR and Meiteki Koyiet v Republic [2013] e KLR . 11.It was finally submitted that the charge of robbery with violence was unconstitutional following the High court decision in Joseph Kaberia Kahinga & 11 others [2016] eKLR where the high court found that the section did not meet the constitutional threshold of setting out in sufficient precision distinctively clarifying and differentiating the degree of aggravation of the offence to enable the accused to adequately answer to the charge and that following the lapse of the period of suspension of the effect of declaration, it follows that the trial court superintended over unconstitutional charge, thereby making the entire process moot, otiose, illegal , null and void. 12.It was contended that criminal liability cannot flow from a statutory provision that stands in defiance of the constitution as was stated in the case of Jackline Octa & another v Attorney General & 2 others [2017] eKLR and Coalition for reform and Democracy (CORD) & 2 others v republic &another [2015] e KLR . 13.At the close of the prosecution case the appellants were placed on their defences without a substantiated or reasoned consideration and that they were not informed of how to surmount the burden of proof in successfully challenging the prosecution case having been placed on their defence , thereby occasioning miscarriage of justice. 14.The appellant submitted that the sentenced mated out was inordinately harsh taking into account the allegations of theft which they faced . 15.On behalf of the prosecution , it was submitted that the identification of the appellants was proper as the robbery occurred during day time between 11 am to 1 pm in a matatu and that pw1 and pw2 were able to properly identified the appellants as the driver and the conductor of the subject matatu as corroborated by PW7 the arresting officer. It was contended that the charge was not defective as it contained the violence as conformed through the p3 form. 16.It was contended that the doctrine of recent possession was not applicable as the appellants were not charged with the offence of handling stolen property and that all the ingredients of the offence as stated by the Court of Appeal in John Ndungu v Republic were satisfied and therefore the conviction was proper. On the unconstitutionality of the charge it was submitted that Justice Mugambi extended the period granted to the AG to the 30th June 202. The appellants defence was considered by the trial curt and declared an afterthought, introduced at the defence stage without giving the prosecution a chance to investigate the same . Proceedings 17.This being a first appeal, the appellants are entitled to a re-evaluation of the evidence tendered and fir the court to come to its own conclusion thereon, while giving allowance to the fact that unlike the trial court, this court did not have the advantage of seeing and hearing witnesses. 18.PW1 Winfred Omari Juma stated that on the material day he was at the stage of Kanasora with his son when motor vehicle registration number KCC675V came by and he boarded the same and sat at the front seat together with his son. After about 100 meters he was held from behind and hit with a metal. He child start crying and one of the persons who sat next to him put his hand in his pocket and removed his money and phone before letting him off. He reported to the police who followed the subject motor vehicle before reporting to the Sacco office where he was given the names of the appellants who were later arrested . 19.In cross examination he said that the first appellant told him to cooperate while the 2nd appellant hit him with a metal bar. The incident took place at 11 am and he was able to see the appellants. The motor vehicle belonged to BTI Sacco and he was able to take down its number plate. 20.PW2 ARJ stated that the 1st appellant was the driver while the 2nd appellant was the conductor who asked his father to sit in front between the driver and another passenger who tried to stop the same from getting off the motor vehicle and later on took his fathers wallet and mobile phone. In cross examination he stated that the second appellant hit his father with a metal bar. 21.PW3 Dr. Joseph Maundu examined PW1 and produced p3 Form where he classified his injuries as soft tissue caused by a blunt object. PW4 Chalister Kemunto was informed by her child that the compliant had died from beatings in a motor vehicle and when she went to the stage to conform, the police informed her that the motor vehicle was being pursued , she went to the police station and reported and her son was able to identify the appellants upon arrest. 22.PW5 TITO BAHATI a boda boda rider was instructed to pursue the subject motor vehicle which made a U turn at cabanas and when the customer at Saku stopped the motor vehicle and asked for her items, and did nit get them, they reported to the police who eventual arrested the appellants. The motor vehicle had a registration of KCC and was different from other matatus . 23.PW6 Peter Muiruri confirmed that he was the owner of the subject motor vehicle and had employed the first appellant as the driver who employed the conductor. He was called by the first appellant with the information that he had been arrested .He later went to the police station where he was informed of the charges of robbery . 24.PW7 PC Stephen Kilele was manning the eastern bypass at Utawala when he received the information of the robbery from a rider who was pursuing the motor vehicle. He stopped the motor vehicle but the driver defied and drove off , he followed them and arrested the appellants and at the police station a lady who was there identified the motor vehicle as the one which had been used to rob her but made no recovery. 25.PW8 PC Naftile Njeru was instructed to investigate the matter and stated that the offence occurred inside the matatu and that no identification parade was conducted and that the windscreen of the matatu was broken by the police officer . 26.When put on their defences the 1st appellant confirmed that he was a matatu driver and that on the material day at 11.oo am he went to cabanas on Mombasa road and when the matatu was full he stopped at Kwa Maua to give food he had bought to his wife using the eastern bypass. At Kenol petrol station since they had only three passengers and there were passengers on the other side, he decided to sell them and turn around , they picked a lady passenger at transami and a male passenger. At astrol there was traffic so her overlapped and a traffic office came and hit the windscreen , breaking it. He did not stop and the officer followed him on a motor bike. They then ran away and the officer shot in the air three times. He was later o told that someone in their motor vehicle had lost a phone and made a report to the police station. 27.He later drove to the police station with eleven passengers where they searched for the mobile phone but the same was not found. At the police station a young boy who was there identified them as the conductor and the driver respectively , while the conduct stated that he had not seen the said boy in their motor vehicle and he confirmed that he was working with SACCO Eastern Travelers limited which hired an Advocate for him who wrote to Safaricom for location confirmation. 28.In cross examination he denied carrying the complainant on the material day and that the only offence he committed was overlapping and that there was a person who had a lighted from the said matatu before he stopped with the possibility of the same having taken the phone. 29.The second appellant stated that he was the conductor on the material day and corroborated the testimony of the 1st appellant. In cross examination , he stated that a police officer tried to stop them but they did not, they ran away , at that time they did not have passengers . DW3 Zipporah Rasungu stated that the appellants went to her hotel to eat between 11.30 to noon .DW4 Obaid Mwaura stated that he was a stage manager on the material day at the bypass when the first appellant came to the stage at 11 am and left with a full vehicle. He was later on informed that he had been arrest for reasons which he did not know. In cross examination he stated that the appellant left at 12.0. 30.DW5 Rose Waithera ,the wife of the first appellant stated that the 1st appellant brought to her caps at 12.30 pm. He later informed her that he had been arrested . Determination 31.From the proceedings and submissions herein, I have identified the following issues for determination;a.Whether the prosecution case against the appellants was proved?b.Whether there were material inconsistencies on the prosecution assc.Whether the appellants alibi defence was considered by the court and properly rejected?d.Whether the charge was unconstitutional? 32.Since the appellants have raised the issue of the unconstitutionality of the charge of robbery with violence, I shall start with the said issue fir determination, for should the court find in favour of the appellant, then that would dispose of the appeal herein. 33.The main ground upon which this contestation is base is the holding by the three Judge Bench of this Court in Joseph Kiberia Kahinga & others v Republic wherein the court had this to say “ after a careful consideration of the two sub-sections of section 296 of the penal code we are in agreement that the two sub-sections disclose a lack of sufficient particularity and clarity to distinguish between an offence committed under section 296(1) and that which is taken to be committed under section 296(2) of the Penal Code. In both instances , there are common ingredients of theft accompanied by either threat or the use of actual violence.We agree with the petitioners that the way these two sub-sections have been applied by the actors in the Criminal justice system leave it open for subjective application of section 295 and 296(1) and (2) of the penal code at the discretion of either investigators, prosecutors and courts which is wholly undesirable and which makes its application arbitrary , capricious and unpredictable ………Having considered the submissions by both parties, the authorities cited in this judgement , together with the comparative laws we find and hold that the petitioners have a case when they argue that the sub-sections of 296 and 297 of the penal code are ambiguous and not distinct enough to enable a person charged with either offences to prepare and defend himself due to lack of clarity on what constitute the ingredient of either charge. Article 50(2) of the constitution proclaims what constitute “a fair trial” when a person is charged with a criminal offence. We have already set out herein above. We find and hold that all persons that have been charged with and convicted of the offences of robbery and attempted robbery under section 296(1) and (2) and 297(1) and (2) of the penal code did not have the full benefit of the right to fair trial as provided under Article 50(2) of the Constitution…”. 34.My reading of the said judgement is that anybody charged under any of the above sections of the penal code without the benefit of the clarity sought therein will not and did not benefit from the rights to fair trial and that includes the appellants herein and would therefore agree with the appellants that the trial court in view of the judgement herein above and in the absence of any evidence that the Attorney General had taken the remedial actions proposed by the court during the period given, violated the appellants constitutional rights to fair hearing. 35.The only issue which the court ought to determine is whether that violation vitiated the trial. This issue has been determined by several superior court, to the extent that the accused whose constitutional rights have been violated still has a remedy to lodge a claim for compensation. However, in this matter based on the decision of the three-judge bench herein above, I take the view that there being no clarity as regards the charge, affected their trial. 36.It must also be stated as regards the case which the appellants faced looked at against the alleged violence mated out cannot warrant the life sentence passed by the court and therefore not with stand the Supreme Court position on sentences was inordinately harsh and excessive . 37.I would therefore allow the appeal to the extent that the trial is set aside and the sentence quashed so as to put the appellants at a safe arm’s length . 38.Having disposed of the two constitutional issues raised by the appellants I will herein procced on the merit of the appeal herein based on the evidence produced before the trial court. On the identification of the appellants , the evidence submitted before the trial court and which was confirmed by the appellants is that they were positively identified by the compliant and his son together with the lady whose phone had also been stolen from the subject motor vehicle. The appellants were arrested immediately after the robbery by the arresting officer who chased the motor vehicle as soon as he received the report. There was therefore no need for identification parade as submitted by the appellant. I therefore find no fault with the trial courts finding on identification. 39.On the procedural issue raised by the appellants that they were placed on their defence by the court without indicating the reasons why, the appellants were represented by an Advocate throughout the period of trial and further, the courts are advised not to make lengthy analysis of the evidence if the accused person is placed on his defence so as not to compromise the defence the same is likely to offer. I find no fault with the ruling thereon as the appellants were able to offer their defences. 40.On the appellants alibi defence from the evidence tendered, the same did not displace the prosecution case that placed the appellants and the complainant’s in the motor vehicle at the same time. The defences witnesses save for saying that they were with the appellants and whereas the trial court erroneously rejected the same as an afterthought, I agree with the court that there were contradictions on the timelines given by the witnesses . 41.On the contradiction on the prosecution case as submitted by the appellants I note that those were of minor nature and did not go to the root of the prosecution case as it matters not who between the 1st and the 2nd appellant hit the compliant and at what point in time did PW2 inform PW4 of the incidence 42.Having stated what I have herein above, I find and hold that in view of this courts decision in Joseph Kabeberia Kahinga,s case (supra) the appellants were prejudiced as rights their right to free and fair trial and would therefore set aside the conviction and sentence herein, which I hereby do . I would have sent back the matter to the lower court for retrial but having taken into account the age of this matter , it will not be in the interest of justice to subject the appellants to a fresh trial. 43.The appellants shall therefore be set free forthwith unless otherwise lawfully held . 44.And it is ordered. SIGNED DATED AND DELIVERED THIS 2ND DAY OF JULY 2026J. WAKIAGAJUDGEIn the presence ofIrene - Court assistantMs Kariuki for ODPPMr. Kihanga for the appellant.