https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1665

Nyauke v Republic (Criminal Appeal E100 of 2023) [2026] KECA 1665 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1665 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E100 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Meshack Ogoma Nyauke Appellant and Republic Respondent (Being an Appeal against the judgment of the High Court of Kenya at Homa -Bay (Kiarie Waweru Kiarie, J.) dated 23rd June, 2021 in HCCRA No. 1 of 2018) Judgment 1.The appellant, Meshack Ogoma Nyauke, was charged before the Chief Magistrate’s Court at Homa Bay in Criminal Case No. 1089 of 2014 with the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code. The prosecution alleged that on the night of 15th October 2014 at Wiga Village in Homa Bay County, the appellant, together with others not before court while armed with dangerous weapons namely pangas and rungus, attempted to rob Daniel Onyango Odoyo, “the complainant”, of his household goods and at the time of such an attempt wounded the said Daniel Onyango Odoyo. The appellant denied the charge and thereby invited his trial. 2.The prosecution, in its bid to prove the case against the appellant, called a total of five witnesses. The evidence was that PW1, Michael Ocholla, a Senior Clinical Officer at Homa Bay County Hospital, examined the complainant and confirmed injuries including a human bite on the upper lip, swelling of the mouth and lips, bruises on the elbow, and swelling of the knee and ankle joints, which he classified as harm. PW2, the complainant, recounted how on 15th October 2014 at about 2:30 a.m. he heard noises from his kitchen door, went out, and saw three men standing next to the kitchen all armed with pangas and rungus. He was able to see them because of the security lights that were on. He immediately screamed and two of them fled leaving behind the appellant. By then the appellant and his accomplices had already forced open the kitchen padlock and had also drilled a hole in the kitchen wall. 3.The complainant caught hold of the appellant and with the assistance of the neighbours who had responded to his screams, who included Eli Odhiambo, PW3, and Elizabeth Atieno Otieno, PW4, subdued the appellant, called police officers from Homa-bay police station who came, re-arrested the appellant and took him away. Apparently, and as they struggled, the appellant struck the complainant on the shoulder, knee with the rungu, and bit him on the upper lips. 4.PW5, CPL Paul Muriithi of Homa-bay police station was among the police officers who re-arrested the appellant. He was thereafter detailed to investigate the case and upon conclusion of his investigations preferred the charge. 5.Against this evidence, the appellant gave his sworn defence, stating that he was framed with the case by PW2 after he refused his entreaties to inherit his brother’s wife so that she could move out of the homestead to enable him put up his house thereat. 6.The trial court considered the evidence and concluded that the prosecution had established its case against the appellant beyond reasonable doubt. It accepted the medical evidence of PW1, which confirmed that the complainant sustained injuries classified as harm, found the testimony of PW2, to be credible and consistent, particularly his account of how he apprehended the appellant. The trial court found corroborative evidence in the testimonies of PW3 and PW4 who found the complainant struggling with the appellant after responding to his screams. It rejected the appellant’s defence of a frame up as the issue was never raised by the appellant when he cross-examined the complainant. On that basis, the trial court convicted the appellant and sentenced him to death, holding that, that was the only sentence available. 7.On the first appeal, the High Court carefully re-evaluated the evidence tendered in the trial court and wholly agreed with the conclusions reached by the said court. Accordingly, it dismissed the appeal in its entirety. 8.The appellant dissatisfied with the judgment of the 1st appellate court has approached this Court on second and perhaps last appeal complaining that the said court erred in law in: failing to properly evaluate the identification evidence; holding that the prosecution had proved beyond reasonable doubt the ingredients of the offence; failing to consider inconsistencies and contradictions in the prosecution’s evidence; and finally, that the sentence imposed was unconstitutional. 9.When the appeal was called out for plenary hearing, Mr. Onyango teaming up with Mr. Omondi, learned counsel appeared for the appellant whereas Mr. Maritim, learned Prosecution counsel, appeared for the respondent. 10.Counsel for the appellant submitted that the conviction of the appellant was unsustainable as the identification evidence was unsafe, the same having been made at night, which was not followed with a properly conducted police identification parade, and that the alleged witnesses were strangers to the appellant. He further contended that the prosecution failed to prove the key elements of the offence. Counsel highlighted the contradictions and inconsistencies in the prosecution’s case and posited that the gaps or doubts created by the contradictions ought to have been resolved in favour of the appellant. 11.On sentence, counsel invoked constitutional principles of fair trial and human dignity, urging that the mandatory death sentence was disproportionate and inconsistent with evolving jurisprudence. Counsel in the ultimate prayed that the appeal be allowed, the conviction quashed, and the sentence set aside, or in the alternative, that the mandatory death penalty imposed be substituted with determinate one that is just and proportionate. 12.Opposing the appeal, Mr. Maritim submitted that the two courts below properly evaluated the evidence and reached the correct conclusions. He contended that the identification of the appellant was clear and consistent, having been made under sufficient lighting conditions and corroborated by multiple witnesses, and therefore the absence of an identification parade was not fatal. Counsel argued that the prosecution proved the ingredients of the offence noting that the appellant was in the company of others, was armed with crude weapons and visited violence on the complainant with the injuries, being classified as harm. 13.He submitted further that the contradictions alleged by the appellant were minor and did not go to the root of the prosecution case. He therefore urged for the dismissal of the appeal in its entirety. 14.This being a second appeal, our jurisdiction is confined to consideration of questions of law only. In Aggrey Mbai Injaga v Republic [2014] eKLR, this Court set out the circumstances under which it will disturb the concurrent findings of fact by the trial court in the following terms:“As this court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings. That would mean that the decision is bad in law, thus entitling this Court to interfere.” 15.Having considered the record in its entirety, respective written submissions together with the cited authorities and the law, the issues we desire to determine in disposing of this appeal are, whether: the prosecution proved all the essential ingredients of the offence, and whether the sentence imposed was lawful and proper. 16.So what is attempted robbery with violence? Under our law, attempted robbery with violence occurs when someone attempts to steal property and at or immediately before or after the attempt, uses or threatens actual violence, provided the act is accompanied by at least one of the aggravating factors outlined in section 296(2) of the Penal Code. In other words, there must be clear intention to steal property which is however nibbed in the bud, the offender must attempt to use or threaten to use actual violence against a person or property to overpower resistance or other circumstances, was armed, acting in company of others and visits violence in the process. See section 297(2) of the Penal Code and Ndungu v Republic, [2020] KEHC 7093(KLR). 17.Applying this framework, the evidence on record demonstrates that the appellant was in the company of two others, forced open the padlock as well as the kitchen door, drilled a hole in the wall in a bid to gain entry and perhaps steal therefrom, was armed with a rungu and panga, and inflicted injuries on the complainant classified as harm. From the foregoing, it is obvious that the appellant and his accomplices intended to steal but their efforts were thwarted by the complainant’s unexpected intervention Thus, all essential elements of the offence of attempted robbery with violence were manifested contrary to the assertions of the appellant. 18.The appellant argues that no weapon was produced in evidence.However, the complainant testified that the appellant was armed with a rungu and panga, and PW3 confirmed seeing the same. This Court has consistently held that non-production of a weapon used in the commission of an offence is not fatal where credible and corroborated oral evidence is availed. See Karani v Republic [2010] eKLR and Mwaura v Republic [1987] KLR. 19.As to whether the identification of the appellant was safe and free from possibility of error, the law on the issue is well settled. In Wamunga v Republic [1989] KLR 424, this Court cautioned that:“It is trite law that where the only evidence against a defendant is identification, that evidence must be absolutely watertight to justify a conviction.” 20.In the present case, the appellant was identified at night, and although the complainant and neighbours testified that security lights were on, no police identification parade was conducted. The appellant contends that this was unsafe. However, the courts below found that the complainant had a prolonged encounter with the appellant, as he struggled with him physically, and that neighbours arrived and witnessed the same. This was not a fleeting glance but a sustained interaction. Though the appellant was not previously known to the complainant, the circumstances of direct physical struggle and corroboration by neighbours rendered the identification sufficiently safe. Thus, the identification of the appellant was reliable and free from any possibility of error. The findings by both the trial and the first appellate Courts, that the circumstances of the case provided adequate safeguards against mistaken identity cannot be faulted. Given that the appellant was arrested at the locus in quo by the would-be identifying witnesses, it would have been superfluous to conduct a police identification parade in the circumstances. 21.In our view both the trial and the first appellate court correctly found that the prosecution evidence was credible and consistent, and rightly rejected the appellant’s defence. The first appellate court, in our view, properly discharged its statutory duty set out in Okeno v Republic [1972] EA 32, of reconsidering and re-evaluating the evidence and reaching its own findings. 22.As to sentence, section 297(2) of the Penal Code prescribes death as the penalty for attempted robbery with violence. The Supreme Court in Francis Karioko Muruatetu v Republic [2017] eKLR declared the mandatory nature of the death sentence unconstitutional, but in Muruatetu (No. 2) and Muruatetu (No. 3) the Court clarified that the mandatory death penalty itself remains lawful and available for other capital offences other than murder. 23.This position was first sounded by this Court in Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR, when it held:“Death as a penalty has been sanctioned by the Constitution. We believe that as the Court before us in Godfrey Mutiso v R correctly held:‘the death penalty remains a lawful sentence in Kenya and appears set to remain so for a long time to come.’ 57.To suggest that the Articles of the Constitution outlaw the death penalty is, with respect, a great danger to the people of Kenya and that is a remarkable departure from the tenets of constitutional interpretation. We think we have said enough to show that the death penalty is, contrary to the appellants’ arguments, grounded in the Constitution.’” 24.In the circumstances of this case, where the appellant was armed, acted in company of others, and inflicted violence on the complainant; fall squarely within the aggravated category contemplated by section 297(2). The two courts below were therefore right in imposing and affirming the death sentence. The conviction was properly grounded in law, and the sentence of death, was the only sentence available to the trial court and was therefore properly imposed. 25.The appeal in the premises fails in its entirety and is hereby dismissed. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA………………………… JUDGE OF APPEALE.C. MWITA………………………… JUDGE OF APPEALB. ONGAYA………………………… JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR