https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7636

Mwauri v Republic (Criminal Appeal E049 of 2025) [2026] KEHC 7636 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7636 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E049 of 2025 SC Chirchir, J May 28, 2026 Between Laban Guchu Mwauri Appellant and Republic Respondent Judgment 1.Laban Guchu Mwauri (The Appellant ) was charged with two counts. The 1st count he was charged with the offence of Robbery with violence, Contrary to Section 296 (2) of the Penal Code. 2.The particulars of the charge were that on 31st day of March 2021 at around 10:20 hours at [Particulars withheld] Village, in Muranga Township, within Muranga County, jointly with another before Court robbed Duncan Chege of two Mobile Phones Make ITEL S/No. 3529153484xxxxx valued at Ksh. 1000 and OPPO F7 S/No. 8684760322xxxxx valued at Ksh. 36,000 and immediately before or immediately after the time of such robbery wounded the said Duncan Chege. 3.On the 2nd count, he was charged with rape Contrary to Section 3(1)a,(b) 3(7) of the Sexual Offences Act . The particulars of the charge are that on 31st day of March, 2021 at 10:20 p.m at [Particulars withheld] Village in Muranga Township within Muranga County jointly with another before the Court intentionally and unlawfully caused his penis to penetrate the vagina of NW by use of force. On this 2nd count he faced an alternative charge of committing an indecent Act with an Adult Contrary to Section 11(a) of the Sexual Offences Act. 4.The case went through a full trial. The Appellant was convicted of Count 1 and 11 and acquitted of the alternative charge to count II . He was sentenced to death on the 1st count and 10 years in count 11.The latter sentence was held in abeyance. 5.Aggrieved by the outcome, he filed the present Appeal. Petition of Appeal 6.The Appellant has presented the following grounds:-a.That the learned trial Magistrate erred in law and fact by rejecting the Appellant’s alibi defence without proper consideration and by relying solely on circumstantial evidence that did not meet the legal threshold required for conviction.b.That the learned trial Magistrate misapprehended the law and facts by invoking the doctrine of circumstantial evidence in this case on the basis of an unproven, conditional, and uncertain sale transaction.c.That the learned trial Magistrate erred in law and facts by not finding that the alleged owners (PW-1 and PW-2) never positively identified the Phones in court during trial so as to be marked for identification as exhibits.d.That the sentence of death meted upon the Appellant is unconstitutional, as it is discriminatory and contravenes bill of right provisions hence an error in law and facts. 7.The Appeal proceeded by way of Written Submissions. Appellant’s Submissions 8.It is the Appellants first submission that the trial court erred by placing the burden of proof on his defence of alibi(sic). That it was only sufficient of him to raise such the defence , after which the burden of disproving it lay with the prosecution, and not him. 9.It is further submitted that, the circumstantial evidence relied on failed to meet the threshold of such evidence. He has pointed out for instance that PW4’s evidence lacked firmness and clarity as to the dates and nature of the alleged transaction involving the stolen cellphone; that the circumstances did not unerringly point to the Accused’s guilt and that chain of evidence was broken multiple tissues. It is further submitted that there were evidential gap in handling the exhibits. It is the Appellant’s further Submissions that the alleged owners did not identify the phones. 10.On the sentence, it is submitted that the reasoning behind the sentence was not stated; that there was no indication whether the Appellant’s mitigation was considered. That it was too mechanical and consequently failed the proportionality and fairness tests. 11.The Appellant concludes by stating that “holding a sentence in abeyance” is a term unknown to law. In this regard the decision in the Case of Ali Mwinyi vs. Republic [2017] eKLR and Sammy Kipketer Rono vs. Republic [2021] eKLR have been relied on. 12.It is the Appellant’s final submission that death sentence was no longer mandatory. That in William Okungu vs. Republic [2018] eKLR the court held that the Muruatetu Principles apply Mutatis Mutandis to all capital offences. Respondent’s submissions 13.On identification, it is submitted that one of the eye- witnesses managed to identify the accused in an Identification Parade. On the trial court’s reliance on circumstantial evidence, it is submitted that the victim’s cell phone, were traced to the Appellant, and that PW1 and PW2 identified their cellphones in court. 14.On the sentence it is submitted that the heinous nature of the crime warranted the death sentence. Analysis & Determination 15.The duty of this Court, as the first appellate Court is well settled. It is to review the evidence, carry out its own analysis and arrive at its own determination. However due allowance must be made for the fact that the trial Court had the advantage of hearing the witness first-hand, and observing their demeanor ( see: Okeno vs Republic(1972) EA 32) 16.I have identified the following issues for determination: -a.Whether the Accused was properly identified.b.Whether circumstantial evidence met the threshold.c.Whether the sentence was lawfully. Whether the Accused was properly identified. 17.Both PW1 and PW 2 testified that the incident took place at about 10-30 p.m. Thus, positive identification becomes a critical issue for determination. The law on identification is well settled:a)In Karanja & Another Vs Republic (2004) 2 KLR 140, the court of Appeal relied on its own decision in the case of Cleophas Otieno Wamunga vs Republic .(Court of Appeal Criminal Appeal No. 20 of 1989 at Kisumu,) where it had stated as follows:-“We now turn to the more troublesome part of this appeal, namely the appellant’s conviction on counts 1 and 2 charging him with the robbery of Indakwa (PW1) and Lilian Adhiambo Wagude(PW3). Both these witnesses testified that they recognized the appellant among the robbers who attacked and robbed them……… What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about a miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleged to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach the evidence of visual identification was succinctly stated by Lord Widgery, CJ in the well-known case of R vs Turnbull [1976]3 All ER 549 at page 552 where he said:-‘Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”b)In the case of Kiilu & another v Republic, (2005) 1 KLR 174, the Court of Appeal (Tunoi, Waki & Onyango Otieno JJA), the court of Appeal had this to say on the subject of identification:“Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error.”c)Finally in the Turnbull case ( supra) the court set out the following principles to guide the court on making a determination on positive identification: the amount of time the suspect was under the observation of the witness ; the prevailing lighting conditions; whether there was any obstruction to the available light ,;whether the witness knew the suspect before, and the distance between the suspect and the witness . 18.It was PW1’s testimony that she did not see the assailants as it was dark and her sight was challenged. 19.On the testimony of PW 2 in this regard, although he gave details on the appearance, the height and skin colour of one of the attackers , no evidence was led on the amount of illumination or lighting if any. How did the witness for instance identified one of the attacker’s colour of the sweater, which he stated was blue? his complexion, as dark, at about 10.30 at night? The distance was presumably close as the witness and the suspects were involved in a tussle at some point. The witness had never seen the suspect before, and their next point of contact was when PW2 appeared in court. 20.It was imperative of the witness to have testified of the illumination available to enable the court determine whether it was sufficient for positive identification of the assailant. In the absence of this, the purported identification by PW2 was not reliable. 21.PW2 also testified of identifying the Accused on an Identification Parade. However, the Investigating Officer did not make any reference to any Identification Parade and there were no parade identification documents submitted in evidence. There was no evidence therefore that an identification parade was held. 22.Based on the prevailing conditions then, I am not satisfied that there was positive identification of the Appellant, as the attacker . 23.The prosecution relied heavily, and did so correctly, on circumstantial evidence . The law on circumstantial evidence has been restated in many past decisions of the court. In the case of in Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, where the court of Appeal explained the nature of the evidence as follows:“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial”. 24.The court in the above decision went further to set out conditions which circumstantial evidence must meet before it can form a basis of conviction. The court stated:“in Abanga Alias Onyango v. Rep CR. A NO.32 OF 1990(UR) at page 5 the learned Judges of this Court stated the principles which should be applied in order to test circumstantial evidence. They set them out thus:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 25.Back to the circumstances of this case: - In the process of the attack, PW1 and PW2’s cellphones were taken. These phones were reportedly traced to the Appellant. One of the issues that the Appellant has raised is the handling, and chain, of these exhibits. 26.I have considered the evidence surrounding the discovery and handling of the cellphones and has made certain observations. Firstly, none of the witnesses gave description of the phones, not even by superficial identification features like the colour or the make of the two phones. The clarity only came from the investigation officer. She gave the description as ITEL and OPPO 7. The arresting officer on the other hand identified only OPPO 7, and not the ITEL phone. Further as correctely pointed out by the Appellant, none of the two eye-witnesses were asked to identity and to inform the Court whether what was in Court was indeed their Cellphones. 27.Further it is not indicated how the investigators traced OPPO 7 to PW3 ? what led them for instance to a student at Muranga University? What identifiable features helped in tracking the device?What technology was employed in tracking the phones? Is the Court supposed to assume that the investigators must have applied some form of technology? 28.The court can indeed make such an assumption. However, assumptions are not evidence. The Investigations Officer didn’t not bother to provide this critical piece of evidence, namely the tracking of the phones. When it is further considered that what was provided as particulars of the phones, were merely their make, making such assumptions makes it even difficult. The presentation of the prosecution evidence in this regard speaks about the casual approach of how this matter was investigated and prosecuted. 29.I have further considered the evidence of PW3 and PW4.The assumption, since there is otherwise no evidence, is that the investigators first traced the OPPO 7 to PW3, at Muranga University. Through information obtained from this witness, they were able to trace backwards those who had first had the phone. However, whereas, PW3 stated that he was interrogated by the police on 7/5/2021 (Pg. 5 of the record of Appeal), Pw 4 stated that he was called by the investigations on 5/5/2021 (Pg. 6 Paragraph 2 of his testimony) The pertinent question here is; why were the investigators interrogating PW4 on 7/5/2021 and yet, they were yet to trace PW3 who had the phone. May be there was an explanation, but it is evident from the record that that the Prosecution never led their witnesses to bridge this gap. 30.There is also inconsistency on PW4’s testimony. In his evidence- in -Chief, he told the Court “it was the first time I dealt with the person who sold the phone to me” (Page 6 of the record) However on being recalled, he stated that he used to know the Accused person. This contradiction taints his testimony, and this piece of evidence was critical as it touched on the reliability of his evidence in identifying the person who was ultimately the attackers of PW1 and PW2. 31.The court has made another observation: - PW 7 introduced a new player. He said one of the phones was with PW2 and the other Ambrose Iringo Wairimi. The Ambrose Wairimu was not called as a witness. PW4 also never testified about to whom he sold the 2nd phone and there was no evidence either on to whom it was traced to. 32.I am not satisfied that the circumstances upon which an inference of guilt was being sought has been legality and firmly established; I am not equally convinced that“the circumstances taken cumulatively, should formed a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else” (Ref Adolfathi- supra). 33.On Count 11 the critical elements of the offence include identification and lack of consent. In view of my findings that there was no sufficient evidence linking the Appellant to the crime scene , then there is no evidence that he was the one who raped PW1 34.The Court restates the burden of proof in Criminal cases; - it must be beyond reasonable doubt, and the burden of proof is on the Prosecution. It is immaterial that the Appellant opted for the right of unsworn statement. It was not his duty to prove his innocence. Any gaps that raises doubt on the prosecution’s evidence always go to the benefit of the Accused. 35.It is the finding of this Court therefore that there was no direct evidence linking the Appellant to the crime, and the circumstantial evidence was not sufficient to form a basis of conviction.The conviction was therefore unsafe, and it is hereby set aside. Sentence 36.The sentence of death for the offence of robbery with violence is founded on law. I have taken note of the fact that the Appellant has adopted the reasoning of the Supreme court in Muruatetu case, to argue that death sentence is no longer mandatory. However, the same court went further to explain that their findings on the unconstitutionally of death sentence only applied to Section 204 of the Penal Code. ( see Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) 37.The sentence was therefore lawful. 38.In the end the Appeal succeeds. The conviction of the Appellant is hereby set quashed on both counts , and both sentences set aside. He shall be set free forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 28TH DAY OF MAY, 2026S. CHIRCHIRJUDGEIn the presence of:-Roba/Kalelo-Court AssistantAppellant -present