https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12346

**REPUBLIC OF KENYA** **AT MIGORI** **IN THE HIGH COURT OF KENYA AT MIGORI** **HCCRA NO. E084 OF 2025** **BETWEEN** **MOSES ONYANGO YALO ALIAS MUSA……………….APPELLANT** **VERSUS** **REPUBLIC.........................................................RESPONDENT** ***(Being an appeal against the original conviction and sentence delivered by Hon. C.N.C Oruo (P.M) on 8th August 2025 at Rongo Principal Magistrate’s Court Criminal Case No. E.426 of 2024 Republic vs Moses Onyango Yalo)*** **JUDGEMENT** 1. The appellant was charged and after a full trial convicted for the offence of robbery with violence on count I, contrary to section 296(2), assault causing actual bodily harm on count II, contrary to section 251 of the Penal Code, assault causing actual bodily harm on count III and threatening to kill contrary to on count IV section 233 of the Penal Code. He was sentenced to serve twenty-five (25) years imprisonment on count I, five (5) years imprisonment on count II, five (5) years imprisonment on count III and, five (5) years imprisonment on count IV to run consecutively. 2. Aggrieved, he filed the present appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He complained that the sentence imposed was harsh and excessive. He urged the court to quash his conviction and set aside the sentence imposed or in the alternative the sentence to run concurrently or reduction of sentence. 3. This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its conclusion on that evidence. The court however, bears in mind that it did not see witnesses testify and give due consideration for that. **(See Okeno v Republic [1972] EA 32).** 4. The prosecution called eight witnesses in support of its case. PW1, Davis Omondi Arum, testified that on 18th July, 2024 at approximately 12:00 am, he was travelling towards Kanyawanga when his motor vehicle developed a mechanical problem when two individuals approached him one armed with a knife and the other with a panga, confronted him and demanded his property. He positively identified the appellant as the attacker, aided by security lighting around the place and vehicle headlights which were on. 1. PW1 testified that the assailants robbed him of Kshs.15,000/=, a wallet, two ATM cards, his national identity card, his mother's identity card, a smart driving licence and a Samsung Galaxy A12 mobile phone and title deeds belonging to his clients. The appellant struck him while his accomplice attempted to stab him with a knife. Before further harm could be inflicted, Maurice Origa PW3 whom he had earlier called, arrived on a motorcycle, whose headlight caused the attackers to flee with the stolen property and the vehicle keys. 2. Police officers later visited the scene and recorded statements. The following morning, Maurice Otieno Origa, PW 3 informed him that he had received information from Maureen Ojwang, PW2 an MPESA agent that someone was attempting to replace the SIM card in his stolen phone. Together with PW2 and David Oluoch, PW4, a surveyor, proceeded to meet Maureen Ojwang, PW2. She informed them that two men had attempted to replace a SIM card using his identity card. She led them to the home of one Onyango who was charged with the Appellant who admitted involvement and directed them to the home of the Appellant. 3. When they arrived at Appellant’s residence, the wife and mother initially denied that he was present. However, he was discovered hiding inside the house. The Appellant emerged armed with a panga and attempted to attack PW1. A confrontation ensued during which the Appellant and his associates attacked PW1 and his companions before police officers arrived. PW1 sustained injuries to his chest and sought treatment at Rongo Sub-County Hospital. 4. During cross-examination, PW1 maintained that he clearly saw the attackers using the available lighting and identified Appellant as the taller of the two assailants. He denied that he and his companions attacked the Appellant and insisted that they had merely gone to recover his stolen items. 5. PW2, Maureen Ojwang, testified that she knew Davis Arum, PW1 and the Appellant as a customer and a neighbor. She did not know the Appellant’s co-accused, Felix Otieno. She stated that on 18th July, 2024, two men, namely the Appellant who had a panga, and one Onyango, went to her shop seeking replacement of a SIM card presenting an ID Card which did not belong to either of them but belonged to Davis Arum, PW1. She stated that she declined to replace the SIM card and contacted customer care. Onyango handed her a phone which contained the SIM card intended for replacement where she retrieved contacts and managed to communicate with persons connected to the owner and learnt that the owner Davis Arum PW1, had been robbed the previous night. 6. PW2 corroborated PW1’s account of events that they went to the home of Onyango, the co-accused who admitted involvement and directed them to the residence of the Appellant. She stated that the Appellant emerged from the house armed with a panga and attacked the group. She fled the scene out of fear. PW2 further testified that approximately one week later, the Appellant visited her shop and threatened to kill her for reporting him to the police which she subsequently reported the threat to the police. 7. PW3, Maurice Otieno Origa, a motorcycle operator and a relative of PW1, testified that on 18th July 2024 at about 1.00 a.m., he received a call from PW1 requesting for assistance after his motor vehicle had developed a mechanical problem at Kanyawanga Road. Upon arrival, he found PW1 distressed and learnt that he had been robbed of his valuables. PW3 proceeded to Kamagambo Police Station and returned with police officers who visited the scene and recorded statements. 8. He testified that later that morning, he received information that PW1's stolen phone had been traced. Together with PW1 and others, he visited Maureen Ojwang, PW2 who informed them that two men had attempted to replace a SIM card belonging to PW1. The information led them first to Onyango the co-accused and subsequently to the Appellant. 9. PW3 testified that upon reaching the residence of Appellant, he emerged from the house armed with a panga and assaulted him. He sustained injuries to his chest and shoulder and sought treatment at Rongo Sub-County Hospital. Police officers later arrived at the scene but Appellant had already fled. He positively identified the Appellant as the person who assaulted him. 10. PW4, David Oluoch Origa, a surveyor and a colleague to PW1, testified that on the morning of 18th July 2024, he received information that PW1's phone and identity card had been traced to Rakwaro. After learning that PW1 had been robbed the previous night, he joined PW1 and others in tracing the stolen property. 11. He testified that they met Maureen Ojwang PW 2, who informed them that two men had attempted to replace a SIM card using PW1's identity card. Maureen led them to the home of Onyango the co-accused, who admitted involvement and directed them to the residence of the Appellant. 12. When they arrived at Appellant’s residence, he emerged from the house armed with a panga and immediately became aggressive. He chased PW4 around the compound and inflicted cut wounds upon him. PW4 further testified that the Appellant and his brother pursued him towards a river where they continued assaulting him before members of the public intervened and rescued him. He sought treatment at Rongo Sub-County Hospital. He identified the Appellant as the person who inflicted injuries upon him. 13. PW5, Benard Otieno Kapis, testified that the Appellant’s co-accused, Felix Otieno is his biological son. He stated that before his son acquired a national identity card, he had registered a mobile telephone line in his own name for use by the co-accused. He testified that sometime in July 2024, his son informed him that his phone had developed a fault and had been taken for repairs. Later, police officers informed him that the line registered in his name had been used in a phone suspected to have been stolen during a robbery. 14. He summoned his son where he was arrested upon his arrival. He maintained that although the line was registered in his name, it was being used by his son. He stated that he did not know the source of the handset in which the line had been inserted. 15. PW6, Pope Ochieng, a clinical officer, examined PW1, PW3 and PW4 and completed the P3 Forms confirming tenderness to the chest caused by a blunt object on PW1, categorized as harm. PW3 had tenderness on palpation shoulder joint caused by a blunt object, categorized as harm and PW4, had a sharp cut would on the back of the head and deep cut wound on the left shoulder caused by a sharp weapon, categorized as harm. He concluded that the injuries inflicted on PW 1, PW3 and PW4 all confirmed assault. 16. PW7, Sgt James Mokobi, a police officer attached to the Directorate of Criminal Investigations and seconded to Safaricom, testified that he analysed data and generated call data records which established that the subject handset had initially been used with a SIM card registered in the name of Davis Arum, PW1. However, on 27th July 2024, a SIM card registered in the name of Benard Kapis, PW5 had been inserted into the same handset interchanging PW1’s number from 27th July, 2024 to 28th July, 2024. 17. During cross-examination, he stated that although the records established that PW5’s SIM card had been inserted into the handset, they could not identify the actual user of the phone at the material time. 1. PW8, PC Samwel Odoyo testified that he investigated the robbery reported by PW1. He stated that investigations established that PW1 had been robbed of cash of Kshs.15,000/-, a Samsung Galaxy A12 mobile phone, ATM cards, identity documents, title deeds and other valuables after his vehicle developed mechanical problems. He testified that investigations led to Maureen Ojwang PW2, who informed police that two men had attempted to replace a SIM card using PW1’s identity card. According to PW8, witnesses consistently implicated the Appellant as one of the robbers and as the person who later assaulted PW3 and PW4 when they visited his residence while tracing the stolen property. He further testified that the Appellant later threatened PW2 for reporting him. 2. In his defence, the appellant, denied the allegations, asserting that he was home when he heard his wife screaming. Upon checking what was happening, he saw a crowd which had gathered outside his home with crude weapons. He claimed that the assailants burnt down his house and stated he did not report the incident due to shock. He denied assaulting PW1, PW3 and PW4 He also denied threatening PW2. During cross-examination, he reiterated the that the complainants were his assailants and denied asking PW2 to change his mobile line. 3. DW3, Angela Atieno Onyango testified that she was the wife to the Appellant. She testified that on 18th July 2024 at about 5.00 a.m., the Appellant left home intending to go to work but later returned. She stated that shortly thereafter a crowd of armed people arrived looking for her husband. She testified that one of the persons attempted to assault her, causing her to flee to her in-laws' home. She stated that the crowd gathered at their home and proceeded towards the house. Neighbors also gathered at the scene and, according to her, the attackers eventually left. She testified that the group returned later and burnt down their house, completely destroying it. 4. During cross-examination, DW3 stated that she had returned home on 17th July 2024 at about 8.00 p.m. and that Appellant never left the house that night. She testified that he possessed an Android phone but not a Samsung phone. She acknowledged that there was a robbery case against him but stated that she could not identify any of the persons who allegedly attacked their home because there was a large crowd. She also admitted that she never reported the alleged attack or arson to the police. 5. DW 4, Elijah Otieno Ndero, testified that on 18th July 2024 at about 8.00 a.m., while working on his farm, he heard screams emanating from the Appellant’s home. He proceeded to the scene and observed approximately four people present. He testified that some individuals ran away upon his arrival. 6. According to him, the group was demanding that the Appellant should open the door to his house. He stated that the group eventually left but later returned and burnt down the Appellant’s house. 7. During cross-examination, DW4 stated that there was a noisy crowd at the scene, but he did not recognize any of the persons involved. He testified that the Appellant was inside the house at the time. He further stated that he could not tell whether anyone was injured and admitted that he did not personally witness the assault alleged by the appellant. 8. The appeal was canvassed by way of written submissions by the parties, which have been duly considered. The key ingredients for a robbery with violence charge are found in section 296(2) of the Penal Code. It provides as follows- **“if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”** 1. The offence of robbery with violence under section 296(2) of the Penal Code requires proof of several essential ingredients. The first is theft. PW1 testified that during the incident, the appellant stole Kshs.15,000/=, a wallet, two ATM cards, his national identity card, his mother's identity card, a smart driving license and a Samsung Galaxy A12 mobile phone. PW2 testified that two people among them the Appellant went to her shop and attempted to have their line replaced with an Identity Card which belonged to PW1. She declined and traced PW1 whom she later accompanied to the house of the accomplice, who admitted he was with the appellant and directed them to the Appellant’s house. They proceeded to the appellant’s house in search of the missing items where the Appellant turned aggressive injuring PW1, PW3 and PW4. The corroborating evidence of the prosecution witnesses establish that a theft occurred and that the appellant was the perpetrator. 2. The second ingredient is the use or threat of violence at or immediately before or after the theft. PW1 testified that the appellant and the accomplice were armed with a panga and a knife. The appellant hit him as the other accomplice attempted to stab him. Immediately, PW3 arrived in a motor cycle and the appellant and the accomplice ran away. PW2 also testified that the Appellant arrived at her shop and had a panga when he went to attempt replacing the SIM card using PW1’s Identity Card. This directly links the act of violence to the theft. 3. The third ingredient is the presence of more than one person during the commission of the robbery. PW1 testified that the appellant was accompanied by another individual who was armed with a knife. This aspect of the evidence was uncontested and establishes that the robbery was committed in concert with at least one other person. 4. PW1 positively identified the appellant as the person who stole his property. PW2, positively identified the appellant. He was her regular customer and she could not have mistaken him when he went to her shop to request for SIM card registration with an Identity Card belonging to PW1. The consistency of the identifications, confirms the reliability of the identification. 5. In view of this finding, the prosecution evidence proved beyond reasonable doubt the offence of robbery with violence against the appellant. The conviction on Count I is therefore proper and is affirmed. 6. On the second and third counts, the appellant was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. 7. **Section 251 of the Penal Code states: -** **“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”** 1. The essential elements of the offence of assault causing actual bodily harm are; 2. **Assaulting the complainant or the victim; and** 3. **Occasioning actual bodily harm.** 4. PW1 testified that when they went to the appellant’s house to trace his stolen items, the appellant emerged with a panga and attempted to cut him. He shielded himself and was rescued by PW3 and PW4. He stated that he sustained injuries to his left side of the chest. The medical evidence tended by the clinical officer corroborated the assertion. PW6 concluded that PW1 suffered injuries inflicted by a blunt object and categorized it as harm and concluded that PW1 was assaulted. 1. PW3 confirmed that he had accompanied PW1 to the appellant’s house to trace the stolen items. He testified that the appellant emerged with a panga and attacked him where he sustained chest injuries. This was corroborated by the medical evidence. PW6 concluded that PW3 suffered injuries to the upper limb inflicted by a blunt weapon and categorized it as harm and concluded that PW3 was assaulted. 2. PW4 also confirmed that he had accompanied PW1 to the appellant’s house to trace the stolen items. He testified that the appellant emerged with a panga and chased him in the compound. He attacked him cutting his hand and shoulder. This was corroborated by the medical evidence and photographic images on record. PW6 concluded that PW4 suffered a deep cut wound on the left shoulder and sharp cut wound on the back of the head inflicted by a sharp weapon and categorized it as harm and concluded that PW4 was assaulted. 3. It is in my view that all the witnesses consistently described the sequence of events and the appellant’s direct involvement in causing injury. The medical evidence provided independent verification of the assault incidents and established the nature and severity of the injuries sustained by PW1, PW3 and PW4. 4. Taken together, the evidence from the witnesses and the medical evidence demonstrates a clear and unbroken link between the appellant’s actions and the bodily harm suffered by PW1, PW3 and PW4. The testimonies were consistent, credible, and not dislodged by the defence in any material respect. The combination of eyewitness accounts and medical confirmation establishes beyond reasonable doubt that the assault incidences occurred and resulted in actual bodily harm. 5. Accordingly, the prosecution proved its case on the charge of assault. The trial court correctly found the appellant guilty under section 251 of the Penal Code for the second and third count. 6. On the fourth count, the appellant was charged with threatening to kill contrary to Section 223(1) of the Penal Code. The section provides: **“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive a threat, whether in writing or not, to kill any person, is guilty of a felony and is liable to imprisonment for ten years.”** 1. According to this provision, a threat to kill becomes a felony when any person; (1). Unlawfully utters a threat to kill another; or (2). Causes any person to receive a threat to kill, whether written or not. 1. In her testimony, PW2 stated that the appellant while armed with a panga, uttered the words *“in nyaka anegi”* meaning “I must kill you” which she reported to the police. The words were uttered in her shop in the presence of a customer and her daughter. This court notes that the customer and the daughter were not called to testify. In his defense, the appellant simply denied having threatened PW2. He stated that he only went to buy items from her shop as a customer. PW 8 the investigating officer stated in his evidence that the appellant indeed issued threats to kill PW2. 2. On sentence, as stated, the appellant was sentenced to serve twenty-five (25) years imprisonment on count I, five (5) years imprisonment on count II, five (5) years imprisonment on count III and, five (5) years imprisonment on count III to run consecutively. The court considered the pre-sentence report, the appellant’s mitigation, and his status as a repeat offender having been charged in MCCR E212/2022 with the offence of robbery with violence and being in possession of a firearm. 3. The Appellant contended that the trial court erred in making a finding that the sentences in all four counts should run consecutively instead of concurrently. He pointed out that the Criminal Procedure Code and the Penal Code which provides for instances when sentences may run consecutively or concurrently. He argued that where an accused person is charged with more than one offence but in a single criminal case, the sentences should run concurrently. He relied in the case of **Peter Mbugua Kabui V Republic [CRA no. 666 of 2015 (2016) eKLR.** He argued that the court should consider the principle of totality under the sentencing Guidelines. 4. In the circumstances, the authorities cited by the Appellant are distinguishable with the instant case. In the case of **Peter Mbugua Kabui vs Republic *(supra),*** the Court of Appeal expressed itself on the subject as to when a consecutive or concurrent sentence should apply: **“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.** 1. Further guidance can be drawn from the judiciary Sentencing Policy Guidelines which contain specific provisions explaining circumstances when a court should impose consecutive or concurrent sentence. The Guidelines provide as follows: “7.13 Where the offences emanate from a single transaction, the sentences should run concurrently. **However, where the offences are committed in the course of multiple transactions and where there are multiple victims, the sentence should run consecutively.”** 1. After careful consideration of the four counts, it is apparent that the appellant immediately after he committed the first offence, committed the three other offences in multiple transactions with multiple victims. The offences could have emanated from the first transaction but the subsequent offences involved assault of PW3 and PW4 and a second assault on PW1 when they went to attempt to recover the stolen items. He also threatened to kill PW2 who refused to register a SIM card using a stolen identity card belonging to PW1 and for directing PW1 to the appellant and his accomplice. In view of this finding, the trial court did not err. The sentence is appropriate in the circumstances and should run consecutively. 2. I find no reason to interfere with the trial court’s sentencing decision. The appeal is found to be lacking in merit and is dismissed in its entirety. 1. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF JULY, 2026** **………………………** **W.N. MOLONKO** **JUDGE** **In the presence of:** Appellant Present from Kisumu Maximum Prison. N/A for the Respondent. Susan - Court Assistant.