https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12634

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANGA** **HCCRA NO. E067 OF 2022** **MICHAEL MWANGI NGIGE.............................................................. APPELLANT** **-VERSUS-** **REPUBLIC……………………………………………………………………..RESPONDENT** **JUDGMENT** 1. In the principal count, the accused persons, Michael Mwangi Ngige and Simon Mwangi Njui, were charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. 2. The particulars read that on the 16th day of March 2022 at Kahuro Sub County within Muranga County while armed with rungus and a knife robbed off Gitau Mbugua Karumehis cashKshs.300/- mobile phone of Kshs. 1,200/- and a panga of Kshs.300/- all valued at Kshs.1,800/- and immediately before such robbery wounded the said Gitau Mbugua Karume. 3. In the alternative count, the 2nd accused was charged with the offence of handling stolen good contrary to Section 322(1) as read with Section 322(2) of the Penal Code. The particulars read that on the 16th day of March 2022 at Kahuro Sub County within Muranga County otherwise than in the course of stealing dishonestly received or retained one mobile phone knowing or having reason to believe them to be stolen goods. **The Appellants Submissions** 1. The appellant was charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2). 2. After the hearing he was convicted. 3. Upon conviction, the appellant was sentenced to death. 4. Being dissatisfied with the decision he lodged and appeal. 5. He submits that no police parade was carried out. 1. No receipt was produced to prove his phone. 2. No Medical Notes Produced to Prove He Was Treated. 3. Blood stain cloths of the complainant not produced. 6. The PW1 (complainant) says his phone was Okinyi's. 7. PW2 states on 17th May 2022 he saw a man by the complainant and states the complainant was assaulted by robbers on the 19th March, 2022 and charge sheet says it was on 16th March, 2022 8. PW3 says the phone is not traceable from the OCS, PW3 further states in cross-examination, the phone was walking cellphone 9. No witness from the bar or waiter bar where the phone is alleged to have sold were called. 10. The doctrine of recent possession was not proved against him. The prosecution of witness were not credible 11. He submits that it is evident from the evidence adduced in court that the prosecution did not prove their case beyond reasonable doubt. 12. The conviction and the sentence should be set aside. **The Respondent's Submissions.** 1. In opposing the appeal, it is argued that the prosecution proved beyond reasonable doubt the charge against the appellant herein and his co accused as the evidence tendered was sufficient to find them guilty of the offence they were convicted of. 2. Upon conviction, the appellant was sentenced to death. 3. The ingredients of the offence of Robbery with violence were set out by the Court of Appeal in the case of **Johana Ndungu vs Republic criminal appeal no.116 of 1995** as follows: - 1. *If the offender is armed with any dangerous weapon or instrument; or ii. If he is in the company with one or more other persons or persons, or; iii. If at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person.* 4. It is trite law that proof of any one of the above ingredients of robbery with violence is enough to sustain a conviction. 5. On the first ingredient of being armed. PWI in his testimony said that the perpetrators hit him on the head and right shoulder with something huge and he fell down and he was stubbed thrice as they took his phone. It is clear from the proceedings that the accused persons were armed with rungus and knife as they robbed the complainant. 6. Second ingredient of the offender being in company of one or more other person. The complainant herein said that the assailants were two, one from behind and the other on the front. 7. The third ingredient is that at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. 8. PW1 stated in his evidence that during the robbery he was hit on the head and right shoulder with something huge which caused him to fall. 9. Further, he said that he had his mobile phone in his right trouser pocket which he held on but the assailants stabbed him thrice so that he could let go his phone. 10. This evidence is corroborated with that of PW2, a clinical officer who testified that the victim went to the hospital with a history of having been assaulted by robbers. 11. Examination revealed that a healed scar on the right thigh and this was because he had stayed for several weeks before he went to him. vi) The Appellant alleges that his constitutional right to a fair trial under Article 50(2)(h), (j) and (k) was violated. 1. this ground is unsupported by the record, lacks specificity, and is an afterthought intended to upset a lawful conviction. 2. It submits that state-funded counsel is not automatic; it applies only where substantial injustice would result. 3. The Appellant did not request an advocate at trial as he actively participated in the proceedings. 4. No prejudice or complexity justifying state-funded counsel was demonstrated. 5. The appellant was supplied with prosecution evidence and raised no objection at trial. 6. He fully cross-examined witnesses and did not seek adjournment for alleged nondisclosure. 7. He manifested no restriction on challenging or adducing evidence. x) The complainant did not positively identify the accused persons on the material night he was attacked but it is the police who informed the complainant that his phone had been recovered and all that he knew was that the ones who were in possession were his assailants. 1. Thus, it is the evidence of recent possession which supported the case. xi) By applying the doctrine of recent possession, its trite law that the burden shifts from the prosecution to the accused to explain his possession of the item complained about. 1. In this case the accused persons were not able to explain as to how the complainant's mobile phone came into their possession less than 72 hour after it was stolen and having been sold to PW4. xii) From the evidence on record, it's my humble submission that the prosecution proved all the essential ingredients for the offence of robbery with violence. 1. The Appellant alleges that the trial court failed to consider his defence and defence submissions. 2. This ground is unsupported by the record and does not meet the threshold for appellate interference. xiv) A trial court is required to: - Consider the entirety of the evidence on record; Weigh the prosecution case against the defencc; Give reasons for accepting or rejecting the defence. The law does not require the trial court to reproduce or analyse the defence evidence line by line, so long as it is shown to have been considered. xv) he submits that the judgment of the trial court expressly: Summarized the appellant's defence; and/or evaluated it against the prosecution evidence. 1. That the correct approach is for the trial court to exhaustively examine the entire prosecution evidence in totality and weigh it against that of the appellant and make a finding supported by reasons that the prosecution case displaced the defense raised by the appellant. xvii) when the appellant was placed on his defense, he gave sworn statement and was ready with two witnesses who did not testify. 1. His defense was that he was arrested and that he did not know the reason of his arrest. 2. He never justified the possession of the cell phone belonging to the complainant. The defence was misleading and false. xviii) The learned trial magistrate after considering the evidence adduced by both parties found that the Appellant could not exonerate himself from the offence. xix) The Appellant submits that the trial court erred by convicting him on the evidence of a single witness. 1. This ground is legally untenable. It is settled law that a court may convict on the evidence of a single witness, provided the court finds the witness credible and gives reasons for believing the testimony. The law does not require a specific number of witnesses to prove a fact. xx) In the present case, the learned magistrate carefully evaluated the complainant's evidence, found it consistent and truthful, and reasons for believing him. 1. The mere fact that the offence was witnessed primarily by the complainant does not render the conviction unsafe. xxi) The Appellant further argued that the charge sheet was bad in law for duplicity. In the present case, robbery with violence was charged as the principal offence under Section 296(2) of the Penal Code, while handling stolen goods was properly framed as an alternative count under Section 322 (1) of the Penal Code. 1. The two counts were separate, distinct, and mutually exclusive, and no prejudice was occasioned to the Appellant. 2. The law is settled that an accused person cannot be convicted on both the principal and alternative counts arising from the same facts. 3. sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. 4. While exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation. xxiv) **In shadrack Kipchoge Kogo v/s Republic crim. Appeal no. 253/**2003 the Court of Appeal stated: *"Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into an account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.* " xxv) It is my humble submission that while the law on sentencing has evolved, the law provides for a mandatory death sentence. 1. The sentence imposed in this case was lawful at the time of conviction and the conviction itself remains sound. 2. In the muruatetu case the Supreme Court held that mandatory death penalty was unconstitutional, but it did not outlaw the mandatory death penalty. **Analysis and Determination:** Issues for determination is whether the appeal has merit. 1. This being a first appeal, the duty of the court was well stated in **Okeno v Republic [19721 EA 32** thus: *"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh 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 [19581 E.A 424. "*** 1. The Court of Appeal in the case of **Johana Ndungu vs Republic criminal appeal no.116 of 1995**. as follows: - * 1. If the offender is armed with any dangerous weapon or instrument; or 2. If he is in the company with one or more other person or persons, or; 3. If at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. 2. It is trite law that proof of any one of the above ingredients of robbery with violence is enough to sustain a conviction. 3. The Court of Appeal in the case **of Johana Ndungu vs Republic criminal appeal no.116 of 1995** as follows: - 4. If the offender is armed with any dangerous weapon or instrument; or ii. If he is in the company with one or more other persons or persons, or; iii. If at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. 5. It is trite law that proof of any one of the above ingredients of robbery with violence is enough to sustain a conviction. 6. In answering the question whether the appellant was in the company with one or more other persons or persons, The complainant herein said that the assailants were two, one from behind and the other on the front. The court is satisfied that the appellant was in the company of another person. 7. Were they armed? PW1 stated in his evidence that during the robbery he was hit on the head and right shoulder with something huge which caused him to fall. 8. Further, he said that he had his mobile phone in his right trouser pocket which he held on but the assailants stabbed him thrice so that he could let go his phone. 9. This evidence is corroborated with that of PW2, a clinical officer who testified that the victim went to the hospital with a history of having been assaulted by robbers. 10. Examination revealed a scar on the right thigh and this was because he had stayed for several weeks before he went to him. 11. The court is satisfied that at the time of the offence the appellant was armed. 12. On the issue of duplicity, it is this court’s finding that duplicity only arises where two or more offences are charged in a single count. In the present case, robbery with violence was charged as the principal offence under Section 296(2) of the Penal Code, while handling stolen goods was properly framed as an alternative count under Section 322 (1) of the Penal Code. 13. The two counts were separate, distinct, and mutually exclusive, and no prejudice was occasioned to the Appellant. 14. Further, the law is settled that an accused person cannot be convicted on both the principal and alternative counts arising from the same facts. 15. On another front, the appellant argues his right to fair hearing under Article 50 of The Constitution was taken away during the trial since the court failed to inform him of his right to legal counsel given the gravity of the offence he was charged with. 16. In **Republic vs Karisa Chengo and 2 others [2017] eKLR**, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that; “*In accordance with the language of the* [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.* *From the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the* [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*.* 1. The right to counsel is not an automatic entitlement to persons charged with the offence of offences. 2. In any event the appellant fails to demonstrate the prejudice that he suffered if any. 3. This ground lacks merit. 4. The court shall now address its mind to the issue of sentencing the Court of Appeal, on its part, in [**Bernard Kimani Gacheru v Republic**](https://new.kenyalaw.org/akn/ke/judgment/keca/2002/94) **[2002] eKLR** restated that: *“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist*.” **Determination:** 1. The appeal lacks merit. **Order;** The Appeal is dismissed. **Dated, Signed and Delivered Virtually at Eldoret this 22nd day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**