https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10914

Kibet v Republic (Criminal Appeal E192 of 2019) [2026] KEHC 10914 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10914 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E192 of 2019 RA Oganyo, J July 17, 2026 Between Meshack Kibet Appellant and Republic Respondent Judgment Introduction 1.The Appellant herein, Meshack Kibet, was charged in the Chief Magistrate Court at Eldoret, Criminal Case No. 1101 of 2018. He faced one main count of Robbery with Violence. 2.The particulars of the offence were as follows;Robbery with violence contrary to section 296(2) of the Penal CodeOn the night of the 28th Day of February, 2018, at Sinonin Village in Eldoret West District within Uasin Gishu County, jointly with others while armed with a dangerous weapon namely pistols robbed Mary Murey of a steel box containing cash money Kshs. 339,950/= and immediately before the time of such robbery threatened to use actual violence against the said Mary Murey. 3.When arraigned before Court, the Accused pleaded not guilty to the offences. After a full trial, the Accused was found guilty and convicted as charged the offence. He was subsequently sentenced serve 30 years imprisonment on the charge of Robbery contrary to section 296(1) of the Penal Code. The Appeal 4.The Appellant herein was aggrieved by the conviction and sentence. He filed a Petition of Appeal dated 3rd December, 2019 and amended grounds of appeal dated 26th January, 2026. The Appellant challenged the conviction and sentence in alleging that the trial magistrate erred in both facts and law by failing to note the evidence of identification by PW1, PW2, PW3 and PW7 were not free from possibility of error, that he was not connected to the offense, that his rights to a fair trial was violated and that the trial magistrate did not consider his defense. 5.This Court was then urged to allow the appeal by quashing the conviction, setting aside the sentence and forthwith setting the Appellant at liberty. 6.During the hearing of the appeal, the Appellant relied on his written submissions wherein he expounded on the grounds of appeal. He also referred to various decisions. 7.The court directed parties to file written submissions and at the time of writing this judgement, it is only the Appellant who had complied. Analysis and determination 8.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 9.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 10.In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the following issues arising for determination:a.Whether the Appellant was properly identifiedb.Whether the Appellant’s right to a fair trial was violated I. Whether the Appellant was properly identified 11.The Appellant’s contention on appeal is that he was not properly identified and that the identification evidence produced by the prosecution witnesses were not free from errors and that his arrest was not connected to the offence. 12.Before dealing with the said aspects of the offence, the Court will render a very brief recount of the evidence adduced at the trial. Needless to say, the trial Court summarized the evidence in its judgement quite well and this Court hereby adopts the same herein by way of reference. 13.The prosecution called eight (8) witnesses in a bid to establish the charge of Robbery with Violence Contrary to Section 296(2) of the Penal Code. PW1, Mary Murey, testified that she knew the Appellant, her neighbour, for about two years. She was a member of a table-banking (chama) group referred to in the record as “Silik” or “Silk” Women's Group, which had, by 28th February 2018, collected a total of approximately Kshs. 339,950/= to be shared out among members the following day. The money was kept in a steel box under her bed. On the night of 28th February 2018, at between 9.00 p.m. and 10.00 p.m., the Appellant and other persons came to her home asking for alcohol, and, upon being told there was none, left, but returned shortly after claiming to be police officers, forced the door open and ordered her to sit down. She testified that she saw the Appellant standing at the door and recognised him with the aid of a D-light that was on in the house at the material time, and again when he directed one of the other men to the room where the money was kept. Three men entered the room, retrieved the money, and fled with it in a bag. PW1 and her grandchildren followed them outside, where one of the men fired a shot into the air and slapped her granddaughter, Shallet, who had attempted to grab the bag. The assailants fled on two motorcycles. PW1 reported the matter at Soy Police Station, and the Appellant was arrested the following day at Soy after her granddaughter, Chepkorir, informed the chief that she had recognised his voice. On cross-examination, PW1 maintained that she saw the Appellant at the window and at the door, that it was not dark outside, and that the Appellant knew where she kept her money as he had once witnessed her hide it there. The money was never recovered. 14.PW2, Shallet Chepkorir, the complainant's granddaughter, then aged 14 years, testified following a voire dire examination. She stated that she was asleep when the intruders, who had earlier sought alcohol, forced their way into the house, and that two men entered the bedroom in which she was sleeping, one of whom located and retrieved the box of money. She followed the assailants outside, where she observed the Appellant, who had initially covered his head with his jacket, lower it once the others confirmed they had “succeeded.” She testified that moonlight enabled her to see the Appellant clearly, that there were three assailants, that the Appellant walked ahead followed by the man carrying the box, and that a third man, whom she did not recognise, slapped her when she attempted to retrieve the box. On cross-examination she maintained that she was the first to follow the men outside, that the Appellant did not personally carry the box, and that there was moonlight outside. 15.PW3, Daisy Chemtai, the complainant's daughter, testified that although she was awoken by the commotion, she remained in the bedroom throughout and did not witness the Appellant or the other assailants enter or leave the house. She learnt from Shallet that the box of money had been taken. On cross-examination she confirmed that there was no light where she was and that she did not see anyone enter the room. 16.PW4, David Barngetuny Koprir, the Assistant Chief of Sinonin Sub-location, testified that he responded to screaming from the complainant's homestead, was informed that money had gone missing after the Appellant had gone to the complainant's house demanding alcohol, and thereafter called the OCS Soy Police Station. He later took part in an unsuccessful search for spent cartridges. On cross-examination, he stated that he saw no sign of forced entry when he arrived at the scene and that he personally heard only screaming, not gunshots. 17.PW5, Anne Kepkemei, and PW6, Emily Jeptum, were both members of the same women's chama as the complainant and the Appellant. They testified that the group's savings, then standing at approximately Kshs. 339,950/=, were kept in a box secured with three padlocks held by different members, including themselves. Both testified that they were alerted by screaming on the material night, found that the box had been stolen, and were required to record statements at Soy Police Station as key-holders. Neither witness saw who took the box, and PW6 could not confirm the exact sum said to have been collected. 18.PW7, Edwin Kipleting, the complainant's grandson, testified that he heard screaming from his grandmother's house, approximately 150 metres from where he lived, and went to the scene, where he learnt that the box had been taken. He did not witness the robbery itself. He testified that the following morning, after PW3 (Jemutai) told him she had seen the Appellant, he accompanied police officers to the Appellant's home area, found him on the road, and pointed him out for arrest. 19.PW8, No. 4xxx6 Senior Sergeant David Kubende, the investigating officer based at Moi's Bridge Police Station, testified that he responded to the report of the robbery, interviewed the complainant, and that one of the suspects had been identified by voice as the Appellant. He stated that the Appellant was traced to his home area at Soy Market and arrested the following day, and that nothing was recovered from him. On cross-examination, he confirmed that no photographs of the scene were taken, that no identification or voice parade was conducted, and that no weapon was recovered in connection with the offence. 20.At the close of the prosecution's case, the trial court found that a prima facie case had been established and placed the Appellant on his defence. DW1, the Appellant, gave sworn evidence to the effect that he returned home from work at about 6.00 p.m. on the material night, having earlier passed by the complainant's house to ask for a drink and been told there was none; that he found his children at home, had supper, and went to bed; and that the following morning, as he and his wife prepared to attend a chama meeting at the complainant's house, police officers arrived, searched his home and arrested him, later charging him with the theft of the group's money. On cross-examination, the Appellant admitted he was a member of the “Silk” group, though he denied that the complainant was herself a member, and stated that he did not know the role the complainant played in the group or how much money had been collected. 21.DW2, Rose Chepkoech Busienei, the Appellant's wife, corroborated his account, testifying that he arrived home at 6.00 p.m. on the material night, took a bath, had supper with her, and that they slept together until police officers arrived the following morning, searched their home and arrested him. She stated that she was surprised to learn of his implication and that she was herself a member of the same chama. 22.On the basis of the above evidence, the trial court found that although the complainant had indeed been robbed at her home on the material night, the evidence adduced was insufficient to sustain a conviction for the aggravated offence of Robbery with Violence contrary to Section 296(2) of the Penal Code as charged. The trial court instead convicted the Appellant of the lesser offence of Robbery contrary to Section 296(1) of the Penal Code, pursuant to Section 215 of the Criminal Procedure Code, and, following a probation report, on 28th November 2019 sentenced him to thirty (30) years' imprisonment. 23.This Court now turns to consider whether the Appellant was properly identified as one of the persons who robbed the complainant. 24.The law on identification evidence, particularly identification by recognition, is well settled. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition of an assailant is inherently more reliable than the identification of a stranger, because recognition depends on prior familiarity with the accused in some form. This was reaffirmed recently in Magoiga v Republic (Criminal Appeal 166 of 2017) [2025] KECA 1029 (KLR), where the Court of Appeal held that recognition by a witness with personal knowledge of the accused, who has ample opportunity to observe him, is more satisfactory than identification of a stranger, though it must still be tested with care. 25.Whether by recognition or otherwise, identification evidence must always be tested with the greatest care. In Wamunga v Republic [1989] KLR 424, cited with approval as recently as LSA v Republic (Criminal Appeal E035 of 2024) [2025] KEHC 6356 (KLR), the Court of Appeal held that where the only evidence against an accused is evidence of identification or recognition, a trial court must examine that evidence carefully and be satisfied that the circumstances of identification were favourable and free from the possibility of error before it can safely be made the basis of a conviction. The relevant factors, as enumerated in Kimea v Republic (Criminal Appeal 010 of 2020) [2022] KEHC 104 (KLR), include the lighting conditions under which the witness made her observation, the distance between the witness and the assailant, the duration of the observation, and whether the witness had an unobstructed view. 26.Applying the foregoing to the present case, this Court notes that identification of the Appellant rested principally on the evidence of two witnesses who claimed to have personally observed him at the scene, namely PW1 and PW2 27.PW1's evidence was that she had known the Appellant as her neighbour for approximately two years prior to the incident, that she saw him at the window before the intruders forced entry, that a D-light was on in the house at the material time, and that she recognised him again as he stood at her door directing the search for the money. Given the length and quality of PW1's prior acquaintance with the Appellant, the presence of artificial lighting, and the sustained opportunity she had to observe him at close range, this Court is satisfied that her identification of the Appellant meets the threshold of a safe recognition, in line with the principle in Anjononi (supra). 28.PW2's evidence calls for closer scrutiny. She relied principally on moonlight to identify the Appellant outside the house during what was, on her own account, a brief and fast-moving encounter as the assailants fled. This Court is guided by the caution sounded in Kelson Linyienga v Republic [2022] KEHC 2000 (KLR), where the High Court found that reliance on moonlight identification, without elaboration on its brightness or quality, is risky and insufficient to found a safe identification, particularly where no identification parade is held to test it, as was recommended in Oluoch v Republic [1985] KLR 549. No such elaboration was given by PW2 in this case. This Court further notes, as PW8 himself conceded, that no identification or voice parade was ever conducted, notwithstanding that voice recognition attributed to PW2 was the very basis on which the police were led to the Appellant and effected his arrest. 29.Identification by voice, while capable of amounting to identification by recognition, similarly demands caution. In Karani v Republic, Court of Appeal, 1985, the Court held that identification by voice nearly always amounts to identification by recognition, but that care must still be taken to ensure the witness was genuinely familiar with the accused's voice and that the surrounding conditions favoured a correct identification. In this case, the record does not disclose the basis or degree of familiarity upon which the voice identification attributed to PW2 was made, nor was it tested by way of a voice parade, notwithstanding that it directly triggered the Appellant's arrest the following morning. 30.This Court has also had regard to the Appellant's contention, raised in his written submissions, that the first reports made to the police and to the assistant chief (PW4) contained no description of the assailants, and that PW1, PW4, PW5, PW6 and PW7 did not, in their evidence in chief, unambiguously state that they themselves identified the Appellant as one of the robbers on the material night. This consideration weighs against the identification evidence of PW4, PW5, PW6 and PW7. However, none of these witnesses purported to be eyewitnesses to the robbery in the first place, and their evidence goes only to corroborating the occurrence of the robbery and the subsequent arrest, not to identification of the perpetrators. 31.The Appellant raised a sworn defence of alibi, corroborated by his wife, DW2, that he was at home from 6.00 p.m. on the material night. It is trite that an accused person who raises an alibi bears no burden to prove it; the burden lies on the prosecution to disprove it by evidence connecting the accused to the scene of the crime. See Kimotho Kiarie v Republic [1984] KECA 65 (KLR), recently applied by the Court of Appeal in Lemarleni v Republic (Criminal Appeal 14 of 2018) [2025] KECA 2154 (KLR). 32.Having re-evaluated the record afresh, this Court is satisfied that the direct and consistent recognition evidence of PW1, a witness of two years' prior acquaintance with the Appellant, under conditions of artificial lighting, at close quarters, over a sustained encounter at her own door, is sufficiently cogent to displace the Appellant's alibi, notwithstanding the weaknesses identified above in PW2's moonlight and voice identification and the investigative gap occasioned by the absence of any identification or voice parade. 33.This Court is accordingly satisfied, on the totality of the evidence, that the Appellant was safely identified as one of the persons who participated in the robbery of the complainant on the night of 28th February 2018. The Appellant's grounds of appeal relating to identification and connection to the offence therefore fail. II. Whether the Appellant’s Right to a fair trial were violated 34.The Appellant's remaining substantive ground of appeal is that the trial court failed to inform him of his right to legal representation under Article 50(2)(g) and (h) of the Constitution, thereby violating his right to a fair trial, and further that his defence was not properly considered. 35.Articles 50(2)(g) and (h) of the Constitution provide thus:(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result and to be informed of this right promptly. 36.At what point is the court required to inform an accused person of his right to legal representation? According to the Article 50(2) of the Constitution, an accused person shall be informed of this right at the outset, hence the use of the word “promptly”. Black’s Law Dictionary, 9th Edition, defines prompt as “to incite, esp. to immediate action.” “Immediate” is defined as “occurring without delay; instant”. 37.Section 43 of the Legal Aid Act, No. 6 of 2016, imposes a corresponding duty on trial courts to inform an unrepresented accused of these rights at the earliest opportunity. 38.In the case of Joseph Kiema Philip v Republic (2019) eKLR, Nyakundi J. held thus:“…it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that he cannot afford an advocate, one may be appointed at the expense of the state. It (the court record) must show that the court did take the profile of the accused person before the trial commenced…” 39.I have perused the record of the trial proceedings, including the plea-taking proceedings of 5th March 2018, and finds nothing on record to indicate that the Appellant was informed of his right to legal representation as required by Article 50(2)(g) of the Constitution. To that extent, I am in agreement with the Applicant that the proceedings were flawed. 40.What should happen then? 41.The effect of such an omission, however, is not automatic or absolute. Two schools of thought have developed in this jurisdiction. The first holds that failure to inform an accused of the right to legal representation vitiates the trial in its entirety. The second, and in this Court's respectful view the better reasoned position, holds that such a failure will only vitiate a conviction where it is shown to have occasioned substantial prejudice or a miscarriage of justice. See N.M.T alias Aunty v Republic, Migori High Court Criminal Appeal No. 44 of 2019, and the Court of Appeal's approach in Thomas Alugha Ndegwa v Republic [2016] eKLR. 42.In assessing whether substantial injustice resulted, this Court has had regard to how the Appellant conducted his defence at trial. The record shows that the Appellant cross-examined all eight prosecution witnesses in a coherent and, at times, effective manner, eliciting significant concessions, including the absence of any identification or voice parade, the absence of ballistic or scene-of-crime evidence, and inconsistencies as to the precise sum stolen. He objected to procedural irregularities, including the recording of a further witness statement by the investigating officer mid-trial, requested and was granted typed proceedings, and mounted a considered sworn defence supported by a corroborating witness. This is not, in this Court's assessment, the conduct of a person who suffered demonstrable prejudice for want of legal representation. 43.This approach finds support in the Court of Appeal's decision in Criminal Appeal No. 12 of 2021 [2023] eKLR, where the court declined to find a violation of Article 50(2)(g) and (h) of the Constitution in circumstances where the appellant had actively participated in the trial, cross-examined the witnesses, and no substantial injustice was shown to have resulted. 44.That said, this Court is alive to the gravity of the charge the Appellant faced, which, as framed, carried on conviction under Section 296(2) of the Penal Code a sentence of death, since rendered discretionary by Francis Karioko Muruatetu & Another v Republic [2017] eKLR. Charges of this gravity ordinarily call for particular vigilance on the part of trial courts in ensuring that unrepresented accused persons are informed of their right to legal aid. Trial courts are reminded of this constitutional obligation. On the specific facts before this Court, however, and having regard to the Appellant's demonstrated capacity to conduct his own defence without discernible prejudice, this Court is not satisfied that the omission occasioned substantial injustice sufficient to vitiate the conviction. 45.On the related complaint that the trial court failed to consider the Appellant's defence, this Court notes that the trial court's judgment, at the point it was placed on record, expressly weighed the Appellant's alibi against the evidence of recognition and rejected it on the basis that PW1 knew the Appellant well and had adequate lighting to identify him. This Court has, in any event, independently re-evaluated that defence above and reached the same conclusion. This ground of appeal accordingly also fails. 46.This ground of appeal also fails. Sentence 47.Although the Appellant did not specifically frame a ground of appeal challenging the legality, as opposed to the severity, of the sentence imposed, this Court, sitting as the first appellate court, is under a duty to satisfy itself as to the legality of a sentence under appeal and may correct an illegal sentence even where the point was not specifically pleaded. 48.The trial court convicted the Appellant not of Robbery with Violence contrary to Section 296(2) of the Penal Code as charged, but of the lesser offence of simple Robbery contrary to Section 296(1) of the Penal Code, pursuant to Section 215 of the Criminal Procedure Code. Section 296(1) of the Penal Code provides that;“Any person who commits the felony of robbery is liable to imprisonment for fourteen years.” 49.The trial court, notwithstanding having convicted the Appellant only of the lesser offence under Section 296(1), proceeded to sentence him to thirty (30) years' imprisonment. This sentence is manifestly unlawful and cannot be permitted to stand. 50.As the accused is a first offender, due allowance in accordance with the authority of Josephine Arissol v R [1957] EA 447 will be given. As observed in Otieno v. R (1983) KLR 295 by Porter, Ag. J. (citing Josephine Arissol v R, supra) ‘the general rule is that a maximum sentence should not be imposed on a first offender [and] it is wrong to depart from this rule even if on the evidence, the accused person might have been convicted of a graver offence.’ 51.I find that an imprisonment for a term of seven (7) years, that is half the maximum prescribed for offence robbery, will meet the justice of the case having regard to the circumstance of the case and considering that the Appellant did not give any mitigating circumstances before the trial court. 52.The sentence is to run from 28th November 2019, the date the original sentence was imposed, less any period the Appellant spent in lawful custody prior to conviction, to be computed in accordance with Section 333(2) of the Criminal Procedure Code.It is so ordered.Right of appeal 14 days. DATED, SIGNED AND DELIVERED THIS 17TH DAY OF JULY, 2026...........................ROSELINE A. OGANYOJUDGEIn the presence of; -Court Assistant…E, Sana.Counsel for the Appellant….Counsel for the Respondent ( DPP )…