https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12626

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL APPEAL NO. E111 OF 2024** **JOHN ROLLEX OTIENO KOMBO Alias DADY…………………...………ACCUSED** **VERSUS** **REPUBLIC…………………………………………………………..……PROSECUTOR** **(Being an appeal from the judgment and sentence of Hon. Wairimu SPM delivered on 13th day of September, 2024 in Migori CMCCRC NO. E600 of 2022)** **JUDGMENT** The Appellant John Rollex Otieno Kombo alias Dady was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code The particulars are that the Appellant on the 14th day of October 2022 at Chamkombe village in Suna East Sub-County within Migori County in the Republic of Kenya jointly with others not before the court while armed with dangerous weapons robbed Joseph Otieno Omondi of his motor cycle Reg. No. KMFX 153 T make Bajaj Boxer red in colour, one mobile phone make Nokia G10 and cash Kshs.300/= all valued at Kshs. 236,300/= and at or immediately before or immediately after the time of such robbery used actual violence against Joseph Otieno Omondi. The Trial Magistrate considered the evidence of seven prosecution witnesses and the Appellant’s sworn testimony and found that the prosecution had proved the offence of robbery with violence beyond reasonable doubt and the Appellant was convicted and sentenced to serve 30 years imprisonment. Aggrieved by the said judgment and sentence the Appellant lodged the appeal herein vide the following grounds:- 1. That I did not plead guilty to the charge herein 2. That the trial court erred in both law and facts by not observing that the case was not proved to the required standard in law of facts 3. That the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the standard in law and facts. 4. That the trial court erred in both law and facts by not considering that the case herein had a lot of contradictions which could not sustain a conviction but rather a total acquittal 5. That the trial court erred in both law and facts by meting a harsh and excessive sentence in the circumstances **REASONS WHEREFORE** 1. Conviction be quashed and the sentence be set aside 2. Reduction of the sentence or 3. Any other order the court may deem fit to grant. **PW1** Joseph Otieno Omondi testified that he came from Ulanda in Awendo Sub County. He said that he was a motor cyclist at Migori Chamkombe stage. That on 14.10.2022 at 11.30pm, his brother borrowed his motor cycle at 4pm and said he was going to Ranen for a burial. He was to return it the next day but at 11pm, he called to tell PW1 that he was by the road and PW1 should go and pick the motor cycle. He went out since he lived near the road. That he found him with another brother. The brother he had lent the motor cycle lives at Blue Shine and the other brother lives at Banana. That they escorted the one who lives in Banana and then he escorted the one who lives at Blue shine. That on his way to his house, he drove off the tarmac road towards his house and he met Rolex with 2 other young men that were not known to him. That Rollex stopped and saluted him then he asked if he could take them to Kakrao centre. That he told them it was late and they should go to the main road to get another motor cycle. That his motor cycle was idling. That they argued then he engaged gear to head off home. That as soon as he engaged the gear, he heard a sound and one side of his body lost control and he fell down. He said he could not raise alarm since he was bleeding from his mouth and ear. PW1 said that he had Kshs. 300 in his pocket and a phone. One of them removed the money and phone and then removed him from the road where he had fallen and they put him on the side. They then left with the motor cycle. That there is a lady who was listening to what was going on. When he had been taken to hospital, he heard about her. George Sambu and Peter Odhiambo went to the scene and took him to the District Hospital. He said he was conscious but he could not do anything. He said he was admitted in hospital and taken for CT scan. The doctor warned his family that they couldn’t manage him unless he was taken to Tenwek or Jaramogi Hospital. That he was taken to Jaramogi where he stayed for one month. That after one week he started speech therapy and when those who work with him went to see him in hospital, he was able to communicate with sign language. They asked if he knew who injured him. He said he knew who it was because they had talked and he told them it was John Rolex and 2 others whom I did not know. PW1 said he knew John Rolex as a neighbor. He said he knew it was him because the security lights were on at the homes next to the road. The moon was full and the motor cycle was on so the lights were on. He said he knew it was John Rolex. That after he came out of hospital after one month, he could not do anything and he could not walk or hold a cup. That it is his wife, George Sambu and Peter who reported to the police. He said he was given a P3 which he identified as MFI 1. He also identified Treatment notes from Migori Hospital as MFI 2. PW1 also identified bill enquiry form from Jaramogi Hospital as MFI 3 and Discharge summary as MFI 4. PW1 said that to date his motor cycle and phone have not been recovered. That he was not there when John Rolex was arrested. He identified the Appellant as the Accused before court. In cross examination by the Appellant PW1 said that he knew the Appellant as his neighbour. He said that he him and 2 other young men whom he did not know. He said the other 2 young men had not covered their faces but he didn’t recognize them. He said he was not keen to look at their appearances. The police called him when he was in hospital. He said that when he spoke to the police the Appellant was not near. That the police did not tell him when they were going to arrest the Appellant. That initially he could not communicate and he was using sign language. When he was at the scene of the incident he couldn’t talk since he was bleeding from his mouth but he could see what was going on. He said he told the police as much in but it was not in his statement. If it is not there, the mistake is that of the police. He said that he was not carrying anyone at the time of the incident. He said that the Appellant was not found with anything of belonging to him. He said that he had the number for the motor cycle, the forms for the Mkopa loan for the phone. When one takes a loan they are not given the number plate for the motor cycle immediately. The motor cycle had lights, the houses next to the road had security lights and there was a full moon. I told the police what happened and they wrote. The lights were on but I don’t know for how long. He said that he just responded to the Appellant you and engaged gear. He said he could not tell the time it took. He said he saw the 3 people about 30 metres away on the road. When they stopped him, they were on his side. When the Appellant stopped him he knew who he was. He said that when one is stopped, by their neighbor they cannot refuse to stop. The tracker and serial number for the motor cycle were in the phone that was stolen. The tracker was removed after the motor cycle moved 3 kilometres. Watu Credit tried to follow the tracker after the incident but they said the tracker had been removed. That he went to Jaramogi Hospital the next day after he spent one day at District. The P3 form was filled on 22.3.2023. He was not escorted to the hospital he went alone In re-examination, PW1 said that he did not know the other 2 people who were with the accused and he cannot tell how the others look because his focus was on his neighbor. PW2 Edwin Ouma Odhiambo, a resident of Wauntha – Awendo in Migori testified that he knew Joseph Otieno Omondi, who is his friend in Migori. He said Jeseph is a boda boda rider in Migoiri and he had known him since childhood. He said that Joseph resides in Chamkombe area of Migori. That on 13.10.2023 he decided to borrow Joseph (PW-1) his motor bike to go attend a Matanga at Ranen. That he attended the Matanga and left between 9:00 – 10:00pm to come back to Migori When he arrived at Chamkombe he called the Complainant to the main road to pick his motor bike. He came and then escorted him to his house at Nyasare then he returned to Chamkombe. That was around midnight. That at around 1-1.45am he was called by his brother David who asked him if he saw the accused that day. That David then told him they had collected the complainant from Chamkombe seriously injured. He further informed him they had brought him to Migori District Hospital. PW2 said he visited the Complainant at the hospital and he was seriously injured but could only stare but not talk. That the Complainant was then transferred to Jaramogi hospital for surgery. That on 23.10.2022, he visited the complainant at Jaramogi Hospital. By then he was able to speak and when he questioned him if he knew any of his attackers, he mentioned that he knew one of his attackers but did not mention his name PW2 said he did not know the scene of the attack. PW2 said that he did not know the accused in the dock. He said he was seeing the Appellant for the first time in court. In cross examination, PW2 said that he was with the Complainant between 11.00am to 12.00 midnight. He said he is not the one who made the report to the police station PW3 George Sam Rayamo. from Chamkombe in Suna East Sub County said he is a boda boda rider. He said that he knew Joseph Omondi who is his fellow boda boda rider. That on 13.10.2023 at 11.46pm he got information from Maureen in a text saying “kuja sahii kuna chenye kinafanyika”. He said he didn’t hear the message come in so she called and he picked the phone but she did not say anything. When he called back, she told him to go to where she lives. Joseph was living near where Maureen lives. That he called to ask Joseph to also come out but his phone was not going through. He thought it had been disconnected so called Odhiambo and asked him to come over so that we go and see what was going on. When they got near Maureen’s house, Odhiambo told him to go round and he goes round to the other side. PW2 said he didn’t go round as ordered Odhiambo went round. When he got to the gate, he saw a red jacket and he saw Joseph was lying down at the gate. He told Odhiambo “they have killed Siprat (Joseph’s nickname). That he got to where Joseph was and put on the torch from his phone. That Maureen also came out. Joseph was breathing. PW2 said he ran to his house to get his motor cycle and Odhiambo went to call Omuga. They carried Joseph and put him on the motor cycle. We rushed him to hospital. We then decided to go to Joseph’s house to tell his wife. We tried to open the door since she was not responding and when she woke up, she told us that Joseph had given his motor cycle to Edwin and when he called to ask him to go and pick the motor cycle Joseph had not returned That they took the Complainants wife to the hospital and at about 4am they went to report to the police. He said Joseph had been assaulted and he was bleeding from his head, nose and mouth. He was not talking and did not talk until about 4 days later. There was nobody else at the scene and they didn’t find any of his property at the scene. That they took him to hospital and 4 days later he started talking. He was in hospital at Rusia in Kisumu. He said that he was not there when the Complainant started talking. That they called Edwin after they had taken Joseph to hospital to ask what had happened and he told them that Joseph was on his way back home after he went to pick his motor cycle. **PW4** Justus Magati working at Migori County Referral Hospital and a holder of degree in clinical medicine and surgery from University of Nairobi testified that he graduated in 2008. He was stood down because he did not examine the Complainant either at Migori County Hospital or at Jaramogi Oginga Odinga Hospital in Kisumu but later he came back to court and testified on behalf of his colleagues after the Investigating Officer PW5 had testified. He said he had P3 form for Joseph Otieno Omondi and receipts for payment from county government of Kisumu. He said he was not the one who filled P3 form but he had been asked by the Investigating Officer to appear on behalf of County Government of Kisumu and County Hospital Migori. He said the patient was treated at Migori County Hospital then transferred to Kisumu. The person who filled the P3 form is called Doctor Eugene. He said he had never worked with Dr. Eugene but he could read his handwriting. The Appellant did not object to PW7 testifying on behalf of Dr. Eugene. He went ahead an produced the P3 which was filled on 23.3.20223 after the patient presented at the Hospital of Allegation of having been attacked by a person he knows. He said that he didn’t know the person. He said the patient had been attacked on 13.10.2022 and was injured on his head and his motorcycle was stolen. He had injuries on his head where he had a fracture. There was swelling. The objects used were sharp and blunt. While in Kisumu he was taken to the theatre and Creneotomy done. The degree of injury was classified as maim. He identified the a receipt from Kisumu County Government showing the patient was admitted on 7.11.2022 and he paid a bill for the treatment - P3 MFI1 now exhibit 1. He also identified the treatment notes MFI2 which he produced as exhibit 2. Bill from Jaramogi Referral Hospital. MFI3 was also produced as exhibit 3. The patient was treated at Migori County Hospital but he could not tell when he was treated. He confirmed from the attendance card dated 4.12.2022 in response to Joseph Otieno Omondi. The document has no stamp but it has the logo for Migori County Hospital. Not all does have a stamp. The patient was sent to hospital on 22.3.2022 with a P3 form. The form say he went to hospital alone. According to the person who filed the form the clothes of the patient were torn and blood stained. The injuries were on 13.10.2022. He said that the number of injuries depend on the incident. The witness referred to P3 copy supplied to accused states the stamp on the 1st section is by the police. According to the P3, the complainant said he knew one of those who injured him. In re-examination, PW7 said that attendance card does not show the 1st time the patient was treated. The person can take himself to hospital depending on whether he has recovered or not. **PW5** Number109054 PC Karin Amollo attached at Migori Police Court crime was the investigation office in this matter. He testified that on 14.10.2022 one George Sam Rayamo went to Migori Police Station to report that someone had been robbed of his motorcycle and Kshs.300 at Chamkombe area. The OB number 4/14/10/2022 was generated by the duty officers who went to the scene and found the victim had been taken to hospital. The case was minuted to PW5 by the OCS the next morning. There was no evidence at the scene when he got there and he went to the hospital where the rider was in a coma and was subsequently transferred to Jaramogi Oginga Odinga hospital. Maurine Otieno whose house is at the area where the incident occurred said the incident occurred at her gate. She called George Sam Rayamo who went to the scene with Peter Odhiambo. The suspects had run off by the time they got there but the victim was there in bad condition. PW5 said he recorded the statements of George Sam Rayamo and Peter Odhiambo. He said the accused was arrested by members of public on 22.10.2022 and he brought him to court under an application. That when he went to see the complaint again on 20.10.2022 he managed to record his statement. He said that he had told those who rescued him that he was able to identify the accused who is known as Dady. That he questioned him further but he said he only knew one of them. Later PW5 filled a P3 for the complaint and it was duly filed at Jaramogi Odinga hospital. None of the items was recovered. John Rollex is before court In cross examination by the Accused PW5 said that he had been a police officer for 7 years but that it was the 1st time he was bringing the Accused to court. He said the case is not fictitious.He said that when he went to the scene, he had a pen and a paper and he spoke to witnesses and recorded witness statements. He said he also visited the scene and interviewed the complainant. The charge sheet has stamp. The persons who attacked the accused were not known when the case was reported since the complainant was in a coma. He said the Appellant was arrested almost one month after the incident. He said Maurine witnessed the incident and made a report. She was living in a rental house. He said he did not know where she moved to. He said he confirmed the complainant had been given motorcycle KMFX153T Bajaj boxer 100CC red in color by Watu credit. He lost a G.10 Nokia black in colour. He said he did not track the phone since he was not given the IMEI number. He said he could not track the motorcycle since the tracker had been disabled. If he was to find motorcycle with the wrong number, he would arrest the owner. The items were not recovered. In re-examination by Ms. Kogos PW5 said that the motorcycle was KMFI 153T. The people from Watu credit gave him the log book. The motorcycle has a frame number and chassis number. He said that recording statements and visiting a scene is part of investigation. **PW 6** Peter Odhiambo testified that he is a boda boda rider at Chamkombe. That on 14.10.2022, it was a Wednesday night at 11:45pm, he got a call and the person told him that there was something going on near his store. That he took a panga and they went to the scene and found Bob- he said he did not know his official names. He said Bob was on the ground and one of his gumboots was off. George brought his motor cycle and they took him to District Hospital. That they then went to Migori police station and officers accompanied them to the scene. That Bob stayed in hospital and was transferred to a hospital in Kisumu. That they went to see him after two weeks and he told him and the investigating officer that one of the person who attacked him was Rolex who is also called Dady. That people started planning to kill Rolex but the police arrested him before hand. He identified the Appellant as Rollex. In cross examination by the Appellant PW6 said that **he had** told court what he saw and not what he thinks. When they went to the police station, they didn’t know who had done it. Bob gave them the idea of the person when they were in Kisumu. At the close of prosecution case the Appellant was placed on his defence and he gave sworn statement and said that he lived at college Inn. He said that his house is in Kakrao and he was a plumber. He said that on 22.10.2022 he was at his father’s home and he went to ask his father to build for his mother since her house had been demolished. That his father told him that the house had only been built to facilitate her burial. Tjat he told him that he is not allowed to build until his mother has a house. That the father told him that he is not his son. That he was angry and he went off. That his grandmother’s workers went to console him and he went to Mangwe to drink and when he got there, he saw a fielder motor vehicle. That he was told to get into the car because he had threatened to report his father to human rights activists. That he was taken to Migori police station where he was assaulted and told to go back to where he had come from. That he stayed there for 2 days and when he was brought to court the investigating officer asked for time to conclude investigations Later charges were read to him on 27.10.2022, He said he didn’t know anything about the charges. In cross examination by Ms. Ndombi, the Appellant said that Joseph Otieno is his step mother’s rider he takes her to work every day. He said he could not recall where he was on 14.10.2022. He said he could only recall the date he was arrested. He said he knew he was arrested because his father Philip Onyango Ochieng complained he was demanding for land. He said he did not have any witnesses. All his siblings live in Mombasa and they cannot come to testify. He said he reported to the court about his assault at the police station but nothing was done. The complainant said that he was robbed of his motor cycle yet the 1st report says he didn’t know who robbed him. Directions were taken for hearing of the appeal by way of written submissions. The Appellant filed submissions dated 9th April, 2025 and he identified issues for determination as:- a, Whether identification by recognition was proved beyond reasonable doubt; 1. Whether intensity of light was proved at the locus quo; 2. Whether there were unfavorable circumstances as identification; 3. Whether there was prompt and first report; e, Whether the appellant was in possession of the complainant's stolen items and/or whether the charge sheet was defective. On the issue of identification of the suspect it was submitted that had the trial magistrate warned herself of the dangers of relying on the single identifying witness/evidence (PW l), thus analyzing, re-evaluating and scrutinizing the evidence afresh independently, then she would have come to a different conclusion a part from the one at hand. The Appellant submitted that what raises eyebrow is the circumstances that vehemently surrounded the originality of the offence in question and the factors that inevitably led to such identification on the matters that took place at night. He submitted that there was no great care and real testing on the said evidence whether he was properly identified Further on the issue of identification, it was submitted that it sometimes create confusion where both parties flashed light at each other and the beams might blind the said parties who cannot in any way properly see who is holding the item that illuminated the light. The Appellant emphasized that what is being tested is the impression that was eventually received by the complainant to a certain point at the scene of crime. That in this case, the complainant expressed himself as hereunder: "it is the accused who requested me to take him to Kakrao. I knew his voice very well because we used to meet". That guided by the above quote, it is probably confirmed that the only available point arose from a voice identification which however strong could not warrant a lawful conviction. The main point herein is that the victim was unconscious and that the chances of the impression could not suffice after the attack which befell him on the fateful day was incapacitated by the ability and the powers of observation of the witnesses to be regarded as trustworthy. Being that the victim knew the Appellant oust the fact that he was the one who attacked and robbed him in the essence that the nature of the day was unfavorable and/or even after the said occurrence. This comes to show that there was obvious LACUNA on the prosecution evidence when it comes to other relevant consideration on the state of the victim after attack on the back sample, common sense have it that a normal human being losses memory with time or after a period of time and therefore do not gain memory after a period of time. By the foregoing in mid (PW3) Edwin Ouma Odhiambo at page 27 line 25-26 that; "he just told me he knew who attacked him but did not reveal the identity of the person". The Appellant submitted that none of the prosecution witnesses ever mentioned the intensity of the light or its availability at the scene of crime. As a result, the learned trial magistrate altogether ought to have inquired on the nature of light available. What sort of light? It's size? And its position relative to the Appellant? Indeed none of the witnesses testified to have known the Appellant and [or whether he was mentioned by the victim. It is not a careful test if none of these matters are known because they were not inquired into. In the absence of all these safeguards. It now becomes a burden of the learned magistrate of the same. Otherwise who will be able to test with the greatest care the evidence of a single witness, It is not in doubt that the complainant was in distress and great shock during the attack. In this case, there is no nexus between the Appellant and the offence in question, thus lack of circumstantial or direct evidence connecting the Appellant with the said offence. If the witness (PW 1) says that he could not recognize the assailant at the scene of crime but knew his voice then it is the obligation of the complainant to point any peculiarity in the manner of speech or voice or any other similarity. It is apparent to state that the reporters of the said incident left a lot to be desired given that the first and prompt report did not give the appellant's name, description or any other related feature regarding the offence, the strange fact is that many witnesses do not properly identify one another person even in day light The 1st report at the police station is completely at variance with the testimonies in court given by other witnesses who reported the matter. The Appellant also submitted that that the first person to arrive at the scene of crime after the attack was- Maureen and that her evidence was of great importance, that her evidence was of much use to the prosecution. Kindly see page 12 line 16 to 17 that; after they left me, a widow by the name. Nyakotieno sent George Sam Raya a message informing him to come to where she was. The elephant in the room is that the said Maureen did not even attempt to write a statement at the police nor was she availed to centre stage the truth as she recalls it. In that regard, the prosecution altogether did that at their own risk and the same decision by the first appellate court ought to be exercised in the appellant's favor; that had it not been Maureen, then it is candid that PW2 and PW6 would have not been privy to the offence in question, that position taken by the trial magistrate was not only erroneous but misleading, that the evidence on record fails to meet the threshold of first and prompt report. On defence of alibi, the Appellant submitted that the trial court erred in law and fact in totally misdirecting itself thereby misunderstanding and/or failing to appreciate the appellant's defense and the facts of the case thereby coming to a wrong decision, the Appellant gave sworn statement. This alibi evidence was not challenged by the counsel or the state in cross-examination, it therefore follows it was believed and cogent. As a matter of fact, the trial magistrate could not fix the Appellant with the said offence only that she admitted that she knew the complainant. indeed, the Appellant could have not distanced himself from the complainant's recognition because they all come from the same locality but what transpired on the fateful day and once again the Appellant could not recall the events that transpired on the material day. On the issue of defective charge sheet the Appellant submitted that this humble and contentious submission dwells on the issue of drafted charge sheet which court relied on plea reading and evidence against the appellant Indeed, this is much consideration given that the prosecution amended charge sheet in the particulars of the offences did not meet the threshold due to the fact that it did not indicate the names of the dangerous weapons that were actually used by the appellant and the inflicted injuries thus, the inflicted injuries cannot be said that it was the appellant, hence cannot be visited upon the appellant. A charge sheet is defective under section 214 (1) of the CPC (CAP 75) COK where: (b) it does not accord with the evidence given at the trial. The error or mistake in the charge was termed as "substantial" which cannot be cured under section 382 of the CPC as occasioned a failure ofjustice on the appellant. The Appellant further submitted that this court oversees that the investigations tendered in this case was shoddy, shambolic and perforated thus did not meet the threshold of the required standard given that it must be shown that the offender was armed with dangerous weapon and offensive or instrument, in the charge sheet list of the particulars of the offence, the appellant contends that the investigation apart from recording the witness' statement, he never went to the scene of crime. No crime scene layout, no exhibits were recovered. In conclusion the Appellant submitted that it is clear that the prosecution had failed to prove this case beyond a reasonable doubt standard against the Appellant, the evidence adduced apart from suspicion fails to meet the requirement of law and for that reason, it is the was the Appellant’s humble prayer and request that this court find that the conviction of the superior court and the sentence imposed thereof by the trial court to be unsupported by the evidence and proved set aside the said judgement and sentence by quashing the same as prayed to set the appellant free forthwith, under the provisions of sections 306 (2) of the penal code. **ANALYSIS AND DETERMINATION** This being a first appeal, this Court is under a duty to reconsider, re-evaluate and analyse the entire evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and therefore giving due allowance for that disadvantage. In the leading authority on the duty of a first appellate court in Okeno v Republic (1972) EA 32 the court stated: "An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v Republic [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses." The principles in Okeno was further reaffirmed in Kiilu & Another v Republic, where the Court of Appeal reiterated that a first appellate court has a duty to reconsider the evidence, evaluate it itself and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses. Similar holding was made in **David Njuguna Wairimu v Republic**, where the Court emphasized that a first appellate court must subject the evidence to a fresh and exhaustive examination and cannot merely repeat the trial court's findings. Having carefully re-evaluated the record, the memorandum of appeal and the Appellant's written submissions, the following issues arise for determination: 1. Whether the ingredients of robbery with violence were proved. 2. Whether the Appellant was positively identified. 3. Whether the prosecution case was affected by contradictions, failure to call witnesses and investigative shortcomings. 4. Whether the defence created reasonable doubt. 5. Whether sentence should be interfered with. Regarding whether the offence of robbery with violence was proved, Section 296(2) of the Penal Code is established where any one of the following ingredients exists: 1. the offender is armed with a dangerous weapon; 2. the offender is in company with one or more persons; 3. immediately before or after the robbery the offender wounds, beats or uses violence upon the victim. The evidence of PW1 established that three men confronted him while he rode his motorcycle home. He testified that after declining to ferry them, one of them struck him causing him to lose control and fall. He was then robbed of his motorcycle, mobile phone and cash before being dragged off the road. Medical evidence produced by PW7 confirmed severe head injuries including skull fracture requiring craniotomy. The injuries were classified as maim. There was therefore overwhelming evidence that the Complainant’s property was stolen; the attackers were three in number and serious violence was inflicted. In the circumstances, all the ingredients of the offence of robbery with violence were fully established. On whether the Appellant was positively identified**, t**he conviction principally rests on evidence of recognition.PW1 testified that he knew the Appellant before the incident as a neighbour. According to PW1 the Appellant greeted him; they conversed; the Appellant requested to be ferried to Kakrao; the motorcycle lights were on; nearby homes had security lights and there was full moonlight. PW1 therefore recognized the Appellant before the attack commenced. Recognition is generally more reliable than identification of a stranger although mistakes remain possible. This court having exercised caution considering that occurred at night and find that in the present appeal, several factors persuade this Court that the recognition was reliable. First, PW1 knew the Appellant before the incident. This was not a fleeting encounter with a stranger. Secondly, the Appellant actually spoke to PW1 requesting transport before the attack. Their conversation preceded the assault. Thirdly, PW1 consistently maintained throughout cross-examination that he recognized the Appellant because of the available lighting and because they were neighbours. Fourthly, the Appellant himself admitted in his defence that he knew PW1 as the boda boda rider who used to transport his stepmother to work. That admission reinforces rather than weakens the evidence that the two knew each other well. The Appellant submitted that the conviction was based solely upon voice identification. With respect, that submission is not supported by the record. PW1 expressly testified that he saw and recognized the Appellant using the motorcycle lights; security lights from nearby homes and moonlight. Voice recognition merely strengthened visual recognition. The Appellant further argued that the complainant could not have remembered his attackers after sustaining severe injuries. The evidence however shows that PW1 was conscious throughout the robbery. Although unable to speak immediately due to his injuries, there was no evidence that he lost memory. Once his speech improved, he consistently identified only one attacker—the Appellant. This Court therefore finds no basis for disturbing the trial court's findings on recognition. The Appellant submitted that the first report did not mention his name. The evidence shows that immediately after the attack PW1 was unconscious or unable to communicate verbally due to severe head injuries. PW3 and PW6 confirmed he could not speak. PW5 also found him in a coma. The omission of the Appellant's name in the initial report was therefore fully explained by PW1's medical condition. Once he recovered sufficiently to communicate, PW1 consistently identified the Appellant as one of his attackers. Accordingly, no adverse inference can properly be drawn from the first report. The Appellant faulted the prosecution for failing to call Maureen. The law is settled that the prosecution is not obliged to call a superfluity of witnesses. Maureen arrived after the robbery had already occurred. She neither witnessed the assault nor identified the attackers. Her evidence would merely have confirmed that she heard commotion outside her house and alerted those who came to the scene and discovered the injured complainant. PW3 and PW6 sufficiently proved those circumstances. Her absence therefore occasioned no prejudice. The Appellant referred to contradictions in the prosecution case. Having re-evaluated the evidence, the Court finds only minor discrepancies relating to time, dates appearing in portions of the proceedings and peripheral matters. Such inconsistencies are expected from truthful witnesses recalling traumatic events after the lapse of time. Importantly, all prosecution witnesses remained consistent on the central facts that PW1 was violently attacked; his motorcycle was stolen; he suffered grievous injuries and that he later identified the Appellant as one of the robbers. None of the alleged discrepancies goes to the root of the prosecution case. The Appellant also further argued that no stolen property was recovered. Recovery is not an essential ingredient of robbery with violence. The offence was complete once property was violently stolen. The inability to recover the motorcycle or phone does not weaken otherwise credible eyewitness evidence. The Appellant argued that the charge sheet was defective because it failed to specify the dangerous weapon used. That argument is without merit. The particulars disclosed the date, place, complainant, property stolen. Value of the property stolen, that the offenders were armed with dangerous weapon and that actual violence was used. The Appellant understood the charge and fully participated throughout the trial. No prejudice has been demonstrated. Section 296(2) does not require the prosecution to specify the exact weapon where the evidence otherwise establishes the statutory ingredients. The charge sheet therefore disclosed a proper offence. The Appellant also criticized the investigations as shoddy. Certainly, investigations could have been more elaborate. However, criminal cases are determined upon the evidence produced before court rather than upon perceived imperfections in investigations. Despite absence of recovery of exhibits or scene sketches, the prosecution adduced credible direct evidence of recognition which sufficiently connected the Appellant to the offence. The conviction did not rest upon suspicion. The Appellant in his defence denied involvement and explained circumstances surrounding his arrest. He however admitted that he could not remember where he was on the material night. His defence therefore did not amount to a true alibi. The learned Trial Magistrate considered the defence but correctly found that it did not displace the prosecution evidence. Upon independent evaluation, this Court reaches the same conclusion. The Appellant was sentenced to thirty years imprisonment. Following the jurisprudence in Muruatetu Petition in the Supreme Court death sentence under section 296(2) remains lawful and I do find that the Trial Magistrate was lenient considering the extreme violence with which the offence was committed. The complainant sustained life-threatening head injuries, underwent brain surgery and suffered permanent injuries classified as maim. This Court finds no lawful basis for interference Having independently re-evaluated the entire evidence, I am satisfied that the prosecution proved beyond reasonable doubt that the Appellant, jointly with others not before court, violently robbed the complainant and that the complainant positively recognized him as one of the assailants. The conviction was safe and the sentence lawful. Accordingly: 1. The appeal against conviction is dismissed. 2. The appeal against sentence is dismissed. 3. The conviction for robbery with violence contrary to section 296(2) of the Penal Code is upheld. 4. The sentence of thirty (30) years imprisonment imposed by the trial court is hereby affirmed. 5. Right of appeal within 14 days explained to the Appellant. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH JULY 2026.** **ANNE ONG’INJO** **JUDGE** **In the presence of** Victor – Court Assistant Calvince – Court Assistant Mr. Oimbo Prosecuting Counsel for the Respondent Appellant - Bottom of Form