https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6633

Maina v Republic (Criminal Application E002 of 2024) [2026] KEHC 6633 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6633 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Application E002 of 2024 AK Ndung'u, J May 15, 2026 Between Dennis Gachuhi Maina Applicant and Republic Respondent (From the original Record in the CMCR case No E617 of 2023 in the Chief Magistrate Court at Nanyuki Law Courts) Judgment 1.The Appellant was charged with the offence of Robbery with Violence Contrary to Section 296(2) of the Penal Code. The particulars were that on the 24th day of April 2023 at Kehuho village in Kieni Each sub-county within Nyeri County, the Appellant robbed Morgan Muriithi of his cash sh26,000 one mobile phone make Samasung A-10 valued at shs 28,000 and immediately before the time of such robbery wounded on the said Morgan Muriithi. 2.The Appellant pleaded not guilty and the matter proceeded to full hearing where the prosecution called four witnesses. The Appellant was then placed on his defence, tendered unsworn testimony and opted to call no witnesses. By judgment delivered on 25th January 2024, the Appellant was convicted and vide the ruling delivered on sentencing on 25th January 2024 sentenced to serve twenty five years imprisonment. 3.Being dissatisfied with the decision of the trial court, the Appellant instituted this Appeal against the conviction and sentence on the following grounds of Appeal vide a Petition of Appeal dated 21st January, 20241.That the learned trial magistrate erred in matters of law and fact convicting the appellant on a case that was not proved beyond reasonable doubt2.That the learned trial magistrate erred in matters of law and fact by convicting the Appellant without appreciating that the identity of the perpetrator was not conclusive3.That the trial Magistrate erred in matters of law and fact by convicting the appellant without appreciating that a key witness (medical officer) was not available to produce the p3 form4.That the trial magistrate erred in matters of law and fact by denying the appellant an opportunity to offer his dense statement which contravene right to a fair trial5.That the trial magistrate erred in matters of law and fact by convicting an appellant without considering the period he served in Remand6.That I pray to be present during the hearing of this appeal in order to adduce more grounds and to be served with trial court proceedings and judgement 4.The Appeal was canvassed by way of written submissions which submissions this court has duly considered. 5.I begin by setting out the mandate and duty of the court as the first appellate court in this appeal. The duty was set out succinctly, and the courts have followed this jurisprudence without much variation over time, in Okeno vs. Republic [1972] EA by the Court of Appeal as follows;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 vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (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 finding and conclusion; 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 has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] EA 424.” 6.Similarly, in Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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 has had the advantage of hearing and seeing the witnesses. 7.In a nutshell PW1’s evidence was that on 24.04.23 at 7:30 pm he was at Naromoru Township waiting for a car to go to Blue Line. He met the Appellant on a motorcycle and the Appellant offered to ferry him. The appellant diverted to Rware Estate and accelerated. He took PW1 to a forest. He asked for a phone but PW1 refused. He hit him with a metal bar and removed his tooth. He took his phone and money/ID. The phone was a Samsung A10 -. The Appellant also took Kshs.26,000. 8.PW1 reported at Naromoru Police Station and was referred to hospital. It was his evidence that he had reported the theft to a phone repairer who called him on 26th April, 2023 that the phone had been recovered. PW1 added that he took 2 police (sic) and found the 2 boys. At the conclusion of his testimony the record reads “1 box of Samsun phone PMFI.II” apparently a reference that he identified a box. 9.PW2 testified that on 26.04.23 a man came to his place of work and said his phone stolen. The man was Morgan. He said he had reported. He asked for documents. That the man gave him the box (sic). He photographed it. (IMEI No.). The next day the Appellant brought it as he could not unlock it. PW2 called the owner and told him to come with police. He did and Accused was arrested. It was a Samsung A10. 10.PW4 (and who indeed ought to have been PW3 from the flow of the record), a Clinical Officer, stated that PW1was taken for treatment. He was 74 years. History was years brought for treatment/examination. Attack/injury by someone known to him. He was calm. Clothes not availed. Upon examination no injury on thorax/abdomen. Не had a cracked premolar. Left upper jaw. No medication taken. Degree of injury was harm. 11.PW5, the Investigating Officer, stated that on 25.04.23 he was at Naromoru Police Station. The complainant Morgan Muriithi reported that he hired a boda boda at Naromoru heading to Blue Line when he got to the end of Rware Farm the boda boda operator entered into а forest, complainant inquired and rider emerged with a metal bar, hit him on the face and removed one of his teeth. He robbed him of a phone Samsung Galaxy A10 worth Kshs.28,000. He also stole Kshs.28,000/. 12.PW5 referred him to Naromoru Level 4 and investigations commenced. On 26.04.23 at 0:00 the Accused was found trying to flush his phone at a shop owned by Kamau. Kamau called the owner who came to the station and they proceeded to Kamau's shop and Accused arrested. 13.The Appellant did not offer evidence at trial. 14.I have had occasion to consider the evidence adduced at the trial court. I have taken cognizance that I neither saw nor heard the witnesses testify and have given due allowance for that fact. I have had due regard to the submissions on record, the case law cited and the applicable law. 15.Of determination is whether the prosecution proved its case to the threshold established in law, beyond reasonable doubt and if in the affirmative whether the sentence meted out is legal and appropriate in the circumstances of the case. 16.From the outset the reference to the Appellant by PW1 in his testimony at no time gives an indication whether he identified the assailant at the material time either by visual or recognition identification. It follows then that the evidence of the recovery of the phone is the test upon which the culpability of the Appellant is to be determined. 17.The evidence relating to the recovery of the phone was that PW1 was called by PW2 when the phone was recovered as he had reported the loss to PW2. Other than stating that he had reported to PW2, PW1 did not mention having left a box with PW2, the box that PW2 states to have used to identify the phone. 18.A reading of the evidence of PW1, PW2 and PW5 does not aid this court at all on determining where exactly the phone was recovered when PW2 called PW1 and PW1 responded by coming with police officers to the scene. In an explicable occurrence, the evidence of the 3 on recovery was sketchy and casual. None of them indicates whether at the recovery the phone was in the hands of the Appellant or in the hands of PW2 or somewhere in the shop. 19.PW1 in his evidence states “I took 2 police and found the 2 boys”. Who are these boys and what was their bearing in the matter? Was the Appellant one of them. The question of exactly where the Appellant was and what he was doing at the time he was said to have been found at PW2’s shop by PW1 and the police is not explained. 20.PW5, the investigating officer on whose shoulders this explanation lay was nonchalant in his explanation. I reproduce the relevant part of his evidence for its full meaning and import. He states;“He came to the station, I referred him to Naromoru Level 4. Investigations commenced. On 26.04.23 at 0:00 .the Accused found trying to flush his phone at a shop owned by Kamau. Kamau called the owner who came to the station and they proceeded to Kamau's shop and Accused arrested. P3 Form filled at Naromoru Police Station. Samsung A10 – Pexhibi. 21.A thorough examination of this piece of evidence leads to only one conclusion. It does not aid the court in establishing from who or from where the phone was recovered. 22.For the doctrine of recent possession to properly apply, the prosecution was required to establish, beyond reasonable doubt, that the stolen phone was found in the possession of the Appellant. In the present case, the evidence failed to establish at the actual recovery whether the phone was in the actual possession of PW2, the Appellant or somewhere in the shop. 23.It was therefore incumbent upon PW2 to place before the court cogent evidence demonstrating that it was indeed the Appellant who had delivered the phone to him for repair. Such evidence could have included a repair receipt, job card, register entry, or any contemporaneous record bearing the Appellant’s name or details. In the absence of such evidence, the alleged connection between the Appellant and the phone remained unsubstantiated. Mere assertion by PW2, without supporting documentary or independent evidence, was insufficient to prove beyond reasonable doubt that the Appellant had been in possession of the stolen phone. 25.The principles on the doctrine of recent possession are well settled. The Court of Appeal in Arum v Republic (2006) KLR succinctly set out the conditions that must be satisfied before a conviction can properly rest on the doctrine of recent possession. The Court held that before the doctrine can be invoked, the prosecution must prove: firstly, that the property was found with the suspect; secondly, that the property was positively identified by the complainant; thirdly, that the property was stolen from the complainant; and fourthly, that the property was recently stolen, the proof as to recency depending on the nature of the item and the circumstances of the case. 26.On the question of possession, the prosecution must prove actual or constructive possession on the part of the accused person. Mere suspicion or association with the place where the item was recovered is insufficient. The possession must be conscious and exclusive. 27.The doctrine is only a rebuttable presumption of fact and does not relieve the prosecution of its duty to prove the case beyond reasonable doubt. In Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic (2006) eKLR 101443 (CA) the Court of appeal reiterated that the doctrine is a rule of evidence and can only form the basis of conviction where the possession is positively proved and the accused fails to give a reasonable explanation consistent with innocence. 28.Where there are gaps in the chain of possession, uncertainty in identification of the recovered property, or doubt as to whether the accused was truly in possession of the item, the doctrine of recent possession cannot safely be invoked. 29.In this appeal the evidence on recovery falls way short of the threshold required since none of the witnesses has explained in clear detail where the phone was recovered as analysed above. 30.The Appellant offered no evidence. This was within his right. It is worthy of note that is trite law that an accused person bears no obligation to prove his innocence. The burden of proof throughout the trial remained with the prosecution to establish all the ingredients of the offence beyond reasonable doubt. The failure by an accused person to tender evidence cannot be used to cure gaps or inconsistencies in the prosecution case. It is the duty of the court to carefully scrutinize the entirety of the evidence adduced and where any reasonable doubt arises, however slight, such doubt must be resolved in favour of the accused person. 31.It would be remiss of this court to fail to observe from the evidence adduced that even in the direct evidence in support of the charge of robbery with violence, the evidence on record disclosed material inconsistencies and gaps that weakened the prosecution case on the element of violence which is a key component in a charge of this nature. Whereas the complainant testified that during the robbery he lost a tooth, the clinical officer who examined him only noted a cracked tooth. The medical evidence therefore did not fully corroborate the complainant’s account of the injuries allegedly sustained during the robbery. Such inconsistency was not minor considering that the prosecution relied on the alleged violence to establish the offence of robbery with violence. There exists a whole world of a difference between loss of a tooth and a cracked tooth. 31.Ultimately I must find and hold that the prosecution bears the legal duty to present evidence in a clear, coherent, cogent and complete manner capable of establishing the guilt of the accused beyond reasonable doubt. A criminal conviction cannot be founded on conjecture, assumptions or gaps in evidence which the court is invited to fill through speculation. 32.It is not the duty of the court to connect missing links in the prosecution case or infer facts that were never proved through evidence. Where crucial aspects of the prosecution case are left unresolved, the benefit of doubt must accrue to the accused person. Accordingly, where the prosecution evidence is disjointed, incomplete or leaves material gaps, the court must resist the invitation to fill those gaps on behalf of the prosecution. 33.In the present case, the inconsistencies and evidentiary gaps identified in the prosecution’s case were sufficient to entitle the Appellant to the benefit of doubt. 34.With the result that the Appeal herein has merit and is allowed. The conviction by the trial court is hereby quashed and sentence set aside. The Appellant shall be set at liberty unless otherwise lawfully held. DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY 2026A.K. NDUNG’UJUDGE