https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8988

Mutuma & another v Republic (Criminal Appeal E039 of 2025) [2026] KEHC 8988 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 8988 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E039 of 2025 HM Nyaga, J June 16, 2026 Between Antony Mutuma 1st Appellant Newton Kithinji 2nd Appellant and Republic Respondent (Being an appeal arising from the judgement on conviction and sentence passed on 11th June 2025 by Hon. E. Ayuka (PM) in Tigania Criminal Case No. E501 of 2022) Judgment 1.The appellants were charged before Tigania Magistrate’s Court with the offence of robbery with violence contrary to section 296(2) of the Penal Code. 2.The particulars of the charge was that on 25/6/2022 at Kimachia Location in Tigania West Sub-County, within Meru County robbed Joy Mukiri who is the owner of club H2O of two mobile phones, type guava and tecno, Kshs. 4000/-, a keg pump, 32” inch tv set, woofer amplifier, one carton of spirit-mix brand of trace smart mix brand of guiness, white cap and allsops valued at Kshs 35,000/- and immediately before the robbery used actual violence to the said Joy Mukiri by assaulting her thus occasioning her actual bodily harm. 3.The appellants denied the charge. After a full trial, each appellant was found guilty of the offence, convicted and sentenced to serve a sentence of life imprisonment. 4.Aggrieved by the said conviction and sentence, the appellant filed a joint petition of appeal dated 17th June 2025, which raised the following grounds:a.That the learned trial magistrate erred in law and in fact by not properly analysing the evidence adduced and hence arrived at a wrong finding.b.That the learned trial magistrate erred in law and in fact by not properly analysing the evidence adduced and hence arrived at an erroneous conviction not supported by evidence and law.c.That the learned trial magistrate erred in law and in fact by arriving at a conviction not bearing in mind that nothing was recovered and as well there was no corroboration of the witness testimonies of the prosecution witnesses.d.That the learned trial magistrate erred in law and in fact by failing to consider the appellant’s defence and which raised reasonable doubt on the prosecution case and hence arriving to an erroneous conviction.e.That the learned trial magistrate erred in fact and law by failing to consider the mitigation of the Appellants herein and arrived at a very harsh sentence.f.That the learned trial magistrate meted out a sentence that was too harsh in view of the entire circumstances of the case. 5.In their submissions, the appellants averred that PW1’s own evidence was unreliable, contradictory and uncorroborated. That PW1 and Morris (PW2) are from the same family and PW2 never used to work at the club. 6.Citing Bukenya -vs- Uganda (1972) E.A 549 it was submitted that this court is entitled to draw an inference that their evidence would have been adverse to the prosecution case. 7.It was further submitted that the identification of the appellants was based on “recognition” rather than “identification of strangers”. That the court accepted that because PW1 and PW2 knew the appellants before, they could identify them even with masks, under electric light. They termed the said identification as insufficient, since the robbers were wearing masks. 8.On the sentence, the appellants submitted that the sentence of life imprisonment was manifestly excessive, given that the injuries sustained by the complainant were not life-threatening. That the trial court also failed to take account of the fact that the appellants were first time offenders. 9.The state (DPP) submitted that the ingredients of the offence were proved, citing Mwaka v Republic [2025] KEHC 2747 (KLR) and Dima Denge Dima & Others v Republic, 2013 eKLR for the principle that the 3 elements are disjunctive and one element is sufficient. 10.The State further submitted that the appellants were identified with certainty, that it is them who committed the offence to the exclusion of any other person. That this was based on the following reasons;a.PW1 and PW2 knew the appellants prior to the day of the offence, as they both hail from the area.b.PW1 correctly identified the Appellants (based on the very clothes they had worn when committing the offence) later that same night at neighbouring pub, when they had removed their masks, causing their arrest. 11.The onus on this court as a first appellate court is to re-evaluate the evidence afresh and arrive at its own independent conclusion. This principle was reiterated in Okeno -Vs- Republic (1972) EA 32 where it was held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.” 12.Similarly, in Kamau Njoroge vs Republic [1987] eKLR, the Court of Appeal stated:“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.” 13.In evaluating the evidence, I will refer to the relevant parts of the evidence. As such, I need not rehash the entire evidence herein. 14.The complainant’s testimony was that while she was in her bar, 4 men who wore masks and jackets entered. They were armed with axes and pangas. One man who had a rifle stayed at the door. They demanded cash from her worker. One of them reached where she was and told her “mum you are here” and he took Ksh. 2000/= from her pocket. The men carried the stolen property and left. 15.After the robbery, the complainant and her worker went to a nearby club where they were informed that there was a police officer having a drink. As they were narrating to him what had transpired, the appellants entered the club. The complainant informed the officer that they were the ones who had just robbed her and they were arrested. 16.During the robbery, Morris Mururu (PW2) and Jerom Kimathi(PW3) were also present. They basically reiterated the evidence of the complainant. Mururu identified the 2nd appellant. 17.In his defence, the 1st appellant denied the charge. He stated that on the material day, he met the 2nd appellant who he connected to one Chiloba over a sale of the 2nd appellant’s phone. Later, they went to a local pub where they met the complainant and one Kamathi. That the complainant then said “ndio hawa”. They were arrested. 18.The 2nd appellant stated that he was with the 1st accused when they went to the local pub. That the complainant then said “Ndio hawa watu.” The DCI officer who was in the bar arrested them. 19.The offence of robbery with violence is set out in section 296(2) of the Penal Code and it states as follows:“if the offender is armed with any dangerous or offensive weapon or instrument, or it in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person, he shall be sentenced to death.” 20.The ingredients of the offence of robbery with violence were clearly enumerated by the Court of Appeal in the case of Oluoch Vs Republic (1985) eKLR where it was held that;“Robbery with violence is committed in any of the following circumstances”a.The offender is armed with any dangerous and offensive weapon or instrument; orb.The offender is in company with one or more person or persons; orc.At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person. 21.From the evidence adduced it is clear that indeed there was a robbery. There were 4 men all armed with assorted weapons. They took away the complainant’s property. 22.The ingredients of robbery with violence set out above are disjunctive and if any of them is established then the offence is complete. 23.In the instant case, all the three ingredients were established. 24.The other crucial issue is that of identification. The evidence adduced was to the effect that the robbers wore masks. The exact type was not disclosed during the examination in chief but in her cross-examination, PW1 stated that the masks covered the mouth only and jackets. The lights were on. 25.The complainant stated that when one of the robbers spoke to her she recognized him and even asked him by his name (Mutuma) why he was doing what he was doing. She also said that she recognized the 2nd appellant. That when they were explaining to the officer what had transpired, the appellants walked in. They had the same clothes they had worn during the robbery, but were not wearing masks. That she promptly identified them. 26.Morris (PW2) told the trial court that he recognized the 2nd appellant as the person who beat him during the robbery. 27.The appellants point to alleged contradictions in the complainant’s evidence. I have analysed the same and I don’t see any material contradiction. She was categorical that it was the appellants who attacked and robbed her. Both the appellants are people she knew well as they did come to her club sometimes. 28.I have weighed the evidence adduced and I am of the opinion that the appellants were duly identified. They were arrested shortly after the robbery and they were wearing the same clothes. 29.The appellants submitted that the evidence of identification was wanting but given what I have stated above, I find that PW1 was able to identify the 1st appellant when he spoke to her. She knew him well. She also recognized the 2nd appellant. The 2nd appellant was also recognized by Morris (PW2), who knew hm well. 30.The appellants further argue that the trial court did not consider their defence. 31.A court is bound to consider any evidence adduced in defence, however weak or improbable it is. 32.Looking at the trial court record, I find that the court duly noted the defence adduced and found that it did not rebut the overwhelming evidence adduced by the prosecution. 33.The question for this court now to answer is whether that defence was plausible enough to cast reasonable doubt on the prosecution case. 34.Clearly, the defence of the appellants did not raise any circumstances that explained why they were wearing the same clothes as the ones worn by the people who robbed the complainant moments earlier. 35.As such, just like the trial court, I find that the defence did not raise any reasonable doubt. 36.Consequently, I uphold the conviction. 37.On sentence, the offence of robbery with violence has a mandatory sentence of a death sentence. The trial magistrate, applying what he referred to as Supreme Court Petition No. E004 of 2024, sentenced the appellants to life imprisonment. 38.There is settled law in Francis Karioko Muruatetu and Another vs Republic (2021) eKLR that the principles set out in Francis Francis Karioko Muruatetu and Another vs Republic (2017) eKLR did not apply to any other offence other than murder. The Supreme Court reiterated this position in Goddrick Simiyu Wanga vs Republic [2024] KESC 38 (KLR) when it held as follows;“In terms of Article 163(7) of the Constitution, we expect all Superior and Subordinate Courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu Directions, where we elucidated in the passage below what was intended to be the ratio decidendi in the Muruatetu Case:“In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.” [Our Emphasis]We say no more, save to recapitulate that our decision in the Muruatetu Case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the Muruatetu Case applies only with respect to the mandatory nature of the death sentence under Sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.” 39.As matters stand now, the only penalty that can be imposed in a robbery with violence case is the death penalty. Therefore, the trial court fell into error in imposing an alternative sentence. 40.That said, I note that the DPP did not give a notice of enhancement of sentence. It would thus be highly prejudicial to impose the higher sentence. 41.I will therefore not disturb the sentence. 42.In conclusion the appeal by each appellant is hereby dismissed. DATED, SIGNED & DELIVERED AT MERU THIS 16TH DAY OF JUNE, 2026.H. M. NYAGAJUDGE