https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1308

Chokor v Republic (Criminal Appeal E153 of 2022) [2026] KECA 1308 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1308 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E153 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Musa Yegon Chokor Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Eldoret (Kemei, J.) dated 23rd November 2018 in HCCRA No. 99 of 2013 Criminal Appeal 40 of 2018 ) Judgment 1.The appellant, Musa Yegon Chokor, was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was tried, convicted and sentenced to suffer death by the Principal Magistrate's Court at Kabarnet in Criminal Case No. 267 of 2013. His first appeal (Criminal Appeal No. 40 of 2018) to the High Court at Eldoret was dismissed by D. Kemei, J., in a judgment delivered on 14th November 2018. The appellant now brings this second appeal, challenging both the conviction and the sentence. 2.The particulars of the charge were that on the 3rd May 2013 at Cheseremion Trading Centre in Baringo County, the appellant, while armed with a dangerous weapon, namely an AK47 rifle, robbed Peter Losire of Kshs. 1,650 in cash and three mobile phones valued at Kshs. 7,100, and immediately before, during, or after the time of such robbery, used actual violence. 3.By dint of section 361 of the Criminal Procedure Code, our jurisdiction on a second appeal is limited to consideration of matters of law. On facts, we are required to defer to the concurrent findings by the two courts below unless they have failed to consider crucial evidence or their findings are so perverse that no reasonable tribunal could arrive at such findings. Thus, in Mwangi vs. Republic [2026] KECA 640 (KLR), the Court held that:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings.” 4.In delivering on our mandate as established, it is proper that we restate the evidence in summary. The prosecution's case, as summarised by the two courts below, was that Peter Losire (PW1), a pastor, was at his shop at about 7:00 pm with another pastor by the name Kepha Machuka when a person approached, asked to buy flour, but upon entering the shop, he instead produced a gun and demanded money. PW1 identified the appellant as the attacker, stating that he knew him well as the son of a former Assistant Chief. The appellant took Kshs. 1,650 and three mobile phones, then shot at the roof before retreating. 5.Michael Kiplagat (PW2) testified that he had left his Techno mobile phone charging at PW1's shop on the material day. He heard gunshots that evening and later learned of the robbery. His phone was among those stolen from the shop. He identified it after recovery, and saw photographs of a person holding an AK47 rifle. He later came to learn that the person was the appellant. 6.Inspector of Police Allan Theuri (PW3), the investigating officer, testified that he recovered a Techno mobile phone from the appellant on 8th May 2013, five days after the robbery, when the appellant was found lying injured at Cheseremion. 7.In his defence, the appellant gave an unsworn statement denying the offence. He claimed that he had a grudge with PW1's son over a girl, as a result of which PW1's son shot him and framed him for the robbery. He stated that he was at Kwichalisi on the material day, far from Cheseremion, and only came to the area on 8th May 2013 when he was shot. He alleged that the police colluded with PW1's son to plant the recovered phone and take photographs of him. 8.In dismissing the appellant's first appeal and upholding the conviction and sentence, D. Kemei, J. found that the identification of the appellant was by recognition, as PW1 knew him well, and the conditions for identification were favourable since there was light in the shop. The learned Judge further found that the recovered mobile phone and the photographs taken using the phone corroborated PW1's evidence, and that the principle of recent possession was applicable. The learned Judge held that the failure to call Kepha Machuka as a witness was not fatal, as the prosecution is not obliged to call a particular number of witnesses. 9.When the appeal came up for hearing before us on 28th April 2026, learned counsel Mr. Oyaro appeared for the appellant, while learned Senior Assistant Director of Public Prosecutions, Mr. Tanui, was present for the respondent. Counsel opted to rely on their written submissions to argue the appeal. 10.At the hearing, Mr. Oyaro conceded that his argument that the appellant was not accorded a fair trial was not a matter for consideration by this Court, the issue having not been raised before the first appellate court. 11.In his written submissions, Mr. Oyaro argued that the evidence of identification was not safe. Counsel submitted that the incident occurred at night at about 7:00 pm, with the only light being from a torch and electric light at the shop. He relied on the principles in Maitanyi vs. Republic [1986] KLR 198 and Wamunga vs. Republic [1989] KLR 424, which require courts to scrutinise identification evidence with the greatest care, particularly the nature and intensity of light. According to counsel, the absence of an identification parade also rendered the recognition unsafe. 12.Still maintaining that the conviction was not sound, counsel submitted that the prosecution case was riddled with material contradictions. On this, he argued that the evidence of PW1, PW2, and PW3 on the number and ownership of the phones stolen was inconsistent. Counsel also disputed the evidence of the recovery of the mobile phone, arguing that no inventory or exhibit memo was produced or a proper chain of custody established. He also submitted that the digital photographs allegedly found on the phone were produced without a certificate under section 106B of the Evidence Act , rendering them inadmissible. 13.Turning to the ground that the appeal should succeed because a crucial witness was not called to testify, Mr. Oyaro argued that the failure to call Kepha Machuka, a key eyewitness, was fatal to the prosecution's case. Bukenya & Others vs. Uganda [1972] EA 549 was cited for the proposition that an adverse inference may be drawn where a material witness is not called without explanation. 14.Regarding the sentence, counsel relied on Francis Karioko Muruatetu & Another vs. Republic [2017] KESC 31 (KLR) to argue that the death sentence provided in section 296 (2) of the Penal Code is not mandatory. According to counsel, the death sentence was not deserved in this case, and the Court should substitute it with a determinate term of imprisonment. 15.Mr. Tanui opposed the appeal, arguing that the appellant was recognised by PW1, who knew him well. Counsel cited Ogeto vs. Republic [2004] eKLR in support of the proposition that recognition is more reliable than the identification of a stranger. 16.In asserting that the ingredients of the offence were proved, counsel relied on the case of Mwangale vs. Republic [2024] KECA 311 KLR. It was counsel’s submission that the elements of being armed with a dangerous weapon and being in the company of others were proved.Counsel urged that PW1's evidence was corroborated by PW2 and PW3, particularly through the recovery of the mobile phone and the photographs found therein. 17.Mr. Tanui relied on Eric Otieno Arum vs. Republic [2006] eKLR for the factors to be taken into account for a conviction to arise where a recently stolen item has been recovered. According to counsel, the ingredients for returning a conviction based on the principle of recent possession were indeed met in this case. Counsel concluded by submitting that the appellant's defence was considered, but rightly rejected. 18.In objecting to the appeal against the sentence, counsel submitted that the death penalty imposed by the trial court and upheld by the learned Judge is a lawful sentence. 19.As required of us in a second appeal, we have reviewed the record of appeal, the submissions and the authorities referenced by counsel, and the applicable law. In our view, the issues arising for determination are: whether the charge was proved; whether the failure to call Kepha Machuka as a witness was fatal to the prosecution’s case; and, whether the sentence should stand. 20.The first issue we tackle is whether the appellant’s identification was safe. Both the trial court and the High Court found that the appellant was identified by recognition. PW1 testified that he knew the appellant as the son of a former Assistant Chief. In our view, this was a case of recognition rather than identification of a stranger, which the courts have held is more reliable. In Anjononi & 2 Others vs. Republic [1980] KECA 23 (KLR), the Court held that recognition of a known person is more reliable than identification of a stranger. However, even in cases of recognition, the court must still treat the evidence with caution in order to ensure there is no possibility of error. 21.The appellant submits that the conditions for identification were difficult, as the incident occurred at night around 7:00 pm, and the lighting was poor. We note from the record that PW1 first saw a torchlight from a distance and, upon opening the shop door, he switched on the lights. PW1 testified that he identified the appellant because the lights were on. He also stated that the appellant spent considerable time in the shop, demanding money and phones, and even ordering him to pick up coins that had dropped on the floor. This gave the witness adequate opportunity to observe the appellant. In light of the foregoing circumstances, we concur with the learned Judge and hold that he correctly applied the principles in Maitanyi vs. Republic (supra). Indeed, the learned Judge found that PW1 had known the appellant before, and the time spent during the encounter was sufficient for positive identification. 22.The other complaint by the appellant is that no identification parade was held. On this, we agree with the courts below that an identification parade was unnecessary because this was a case of recognition. As held in Peter Okee Omukaga & Another vs. Republic [2011] KECA 332 (KLR), an identification parade is only a necessity where a suspect is not known to the identifying witness. We therefore agree with the learned Judge’s analysis on this point. Consequently, we find no error in the concurrent findings of the trial magistrate and the first appellate court on the proper identification of the appellant; there is no merit in this ground. 23.We now turn to the appellant’s contention that the offence was not proved. In mounting a challenge to the appellant’s conviction, counsel raised several issues, including the failure to call Kepha Machuka, contradictions in the evidence, and lack of corroboration. Regarding the failure to call Kepha Machuka, it should first be noted that the prosecution is not obligated to call a specific number of witnesses, but only those sufficient to prove the existence of a specific fact. In essence, the law is more concerned with the quality of the evidence than with quantity. As held in Bukenya & Others vs. Uganda (supra), an adverse inference may be drawn if a material witness is not called without explanation. However, in this case, it is on record that the witness indicated that he feared for his life. PW1 explained that the pastor had received threats and was afraid to testify. Further, the evidence of PW1 was cogent and sufficient to sustain the conviction. Moreover, the prosecution’s duty is to adduce evidence that is sufficient to prove its case and this is what happened in this case. In any event, no prejudice was occasioned to the appellant by the failure to call this particular witness. 24.On the claim that there were contradictions that ought to have been reconciled in favour of the appellant, the prevailing jurisprudence is that, unless they touch on material facts, trivial contradictions will not be fatal to the prosecution’s case. This position of the law was expressed in Abuku & Another vs. Republic [2026] KECA 722 (KLR) as follows:“Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and thereforenecessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. The correct approach is to read the evidence tendered holistically.” 25.We have checked the record and find that the evidence of PW1, PW2, and PW3 was largely consistent on the material aspects. PW1 stated that the robbery occurred on 3rd May 2013, and that he recognised the appellant. PW2 testified that he had left his mobile phone to charge at PW1's shop. PW3 testified that a mobile phone, which was later identified by PW2 was recovered from the appellant and that it contained photographs of the appellant posing with an AK47 rifle. The contradictions on the number of phones stolen and the ownership details of those phones are minor and do not go to the root of the prosecution's case. 26.The most crucial evidence is the recovery of the Techno mobile phone from the appellant and whether the principle of recent possession applied in the circumstances. The essential elements of the rule of recent possession were restated in Arum vs. Republic [2006] KECA 385 (KLR), thus:“In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. In case the evidence as to search and discovery of the stolen property from the suspect is conflicting, then the court can only rely on the adduced evidence after analysing it and after it accepts that which it considers is the correct and honest version. That duty as has been said is wholly on the trial court and on the first appellate court. This court has no such duty on hearing a second appeal such as before us but if it be satisfied that that duty has not been fully discharged by the first appellate court then it will take the line that had it been done either or both courts would have arrived at a different conclusion.” 27.In this case, PW2 identified the mobile phone, which he had left charging at PW1's shop, as his. It was stolen on 3rd May 2013 and recovered from the appellant on 8th May 2013, five days later. The time frame is sufficiently short, and although mobile phones can easily change hands, it cannot be said that it had changed hands in this case because the appellant failed to offer any explanation for being in possession of a phone that was recently stolen. The photographs of the appellant holding an AK47 rifle found in the phone further linked him to the robbery. Dealing with almost similarcircumstances, the Court in the case of Appolo Olenja Apitsa vs. Republic [2020] KECA 681 (KLR) held that:“The doctrine of recent possession is a rebuttable presumption of fact. Once the prosecution established the elements of the doctrine of recent possession, the appellant was required, under Section 111 of the Evidence Act, to give a reasonable explanation in rebuttal as to how he came into possession of the mobile phone…Both the trial court and the 1st appellate court found the appellant’s explanation to be unreasonable as he did not lead the police to his alleged friend. Having failed to offer a plausible explanation in rebuttal, an inference was rightly drawn that he either stole the mobile phone or was a guilty receiver.” 28.We are satisfied that the principle of recent possession was rightly applied by the two courts below. The prosecution thus proved its case beyond reasonable doubt. 29.There was the argument by counsel for the appellant that the photographs did not meet the admissibility standard set under section 106B of the Evidence Act. While it is true that certification of electronic evidence is required, the photographs in this case were admitted as exhibits without objection. That notwithstanding, the photographs were found on a physical device, the mobile phone, which was produced in court as an exhibit. The photographs were not produced as an electronic record generated using computer system, thus requiring certification under section 106B, but were materials stored on a physical device that was before the court. The trial court was entitled to view them and make findings of fact. The fact that the appellant was not found with any firearm at the time of his arrest gives credibility to the photographs, as this confirms that they were taken elsewhere and not at the police premises as alleged by the appellant. 30.Regarding the sentence, counsel relied on the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] KESC 31 (KLR), which declared as unconstitutional the mandatory nature of the death sentence in respect of the offence of murder. According to the appellant, the principles enunciated in that decision with respect to the death sentence should extend to the death penalty legislated for the offence of robbery with violence. With respect, that argument is fallacious. The correct position is as stated by the Court in Chege vs. Republic [2025] KECA 1207 (KLR) that the mandatory death penalty for robbery with violence remains valid and is not affected by the decision in Francis Karioko Muruatetu & Another vs. Republic (supra). Indeed, the Supreme Court itself clarified as much in Muruatetu & Another vs. Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR). Not only do we associate ourselves with the position, but we remain cognizant of the fact that the judgments of the Supreme Court are binding on this Court. There is therefore no legitimate reason that allows us to depart from the concurrent findings of the two lower courts on the sentence as we are bound by the law as legislated under section 296(2) of the Penal Code. 31.In the end, we are satisfied that the learned Judge rightly discharged his duty as a judge of first appeal by re-evaluating the evidence and arriving at his own independent conclusions. 32.It therefore follows that the appeal lacks merit and we dismiss it in its entirety. Consequently, the conviction is upheld, and the death penalty affirmed. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY 2026.M. GACHOKA C.Arb, FCIArb..................... JUDGE OF APPEALW. KORIR..................... JUDGE OF APPEALL. M. NDOLO..................... JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR