https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1305

Mbithi v Republic (Criminal Appeal E080 of 2024) [2026] KECA 1305 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1305 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E080 of 2024 WK Korir, L Ndolo & AI Hassan, JJA July 10, 2026 Between Mwanzia Mbithi Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Nairobi (Ogembo, J.) dated 31st January, 2023 in Nairobi High Court Criminal Appeal No. 1658 of 2016) Judgment 1.The appellant was charged before the Chief Magistrate’s Court at Milimani, with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. It was alleged that on 22nd October, 2016, along Ronald Ngala Street in Nairobi, jointly with others not before the trial court, he robbed Abdi Ahmed Hussein of fifteen mobile phones, make Techno, and one Itel phone, all valued at Kshs.183,050/=. It was further alleged that he used actual violence on the complainant immediately before the robbery. 2.The appellant pleaded not guilty to the charge and the case proceeded to full hearing. The prosecution case was based on the testimony of four witnesses. PW1, Abdi Ahmed Hussein (complainant), testified that he sells mobile phones at Luthuli Avenue. That on 22nd October, 2016, at about 9.00 a.m. while delivering phones carried in a box to a customer known as Eric at Mfangano Street, he was attacked by three people. One person held him, while the others ran away with the phones. He testified that the phones were 16 valued at Kshs.183,650/=. It was his testimony that the attackers appeared from nowhere and that it was the appellant who blocked him while the others ran away with the phones. He stated that he fought the appellant and the appellant ran away. He pursued him and caught up with him when police officers from Central Police Station appeared and assisted him in arresting the appellant. He thereafter recorded a statement at the police station and was referred to hospital since he had an injury on his ankle. At the hospital, he was treated and a P3 form dated 25th October, 2016 was filled for him. Nothing was recovered. When cross examined by the appellant, he stated that he was walking alone and that the appellant was in the company of others. He stated that he rescued the appellant from a mob that wanted to lynch him. 3.PW2, PC Benjamin Nzibo, a police officer stationed at Central Police Station, stated that on 22nd October, 2016 at around 10.00 a.m., he was at work on patrol aboard motor vehicle GKB 637M. He was in the company of PC Wainaina and PC Kimani. He stated that they heard shouts and alighted from their vehicle when they found a person being pursued. He stated that the appellant had been stopped by members of the public. He testified that the complainant was Abdi Ahmed. It was his testimony that they re-arrested the appellant as he was in danger of being lynched by a mob. The complainant reported the robbery incident and the appellant was charged. When cross-examined by the appellant he testified that nothing was recovered since the appellant’s accomplices ran away with the phones. It was his testimony that he rescued the appellant from a mob. 4.PW3, Corporal Elias Kiptum, a police officer stationed at Central Police Station, testified that on 22nd October, 2016 at around 9.00 a.m. while at the office, his colleagues, PC Benjamin Nzibo and PC Simon Wainaina, arrived at the station accompanied by the complainant and the appellant. He stated that he was informed that the appellant while in the company of others who had not been arrested, stole from the complainant, techno phones that were packed in a carton at Ronald Ngala Street. He stated that he issued the complainant with a P3 form and subsequently charged the appellant after completing investigations. It was his testimony that the mobile phones were never recovered. He produced a delivery note dated 22nd October, 2016 and treatment notes. He told the court that the two other accomplices have never been arrested. When cross-examined by the appellant, he testified that nothing was recovered and that the two other accomplices ran away. It was his testimony that the appellant was implicated since the complainant yelled immediately after the offence and the appellant was arrested immediately. 5.PW4, Dr. Kamau, a police doctor testified on behalf of Dr.Maundu a police doctor as well. He stated that the P3 form at Part B was filled by Dr. Maundu. He testified that Dr. Maundu in November 2016, examined Ahmed Abdi who had a tender injury of the ankle. It was his testimony that the injury was a result of an assault. It was his testimony that the injury was caused by a blunt object. He testified that the complainant was treated at Awala Pharmaceuticals. It was his testimony that Dr. Maundu classified the injuries as harm. He produced the P3 as an exhibit. When cross- examined by the appellant, he testified that the complainant was hit with a blunt object. 6.On his part, the appellant gave an unsworn defence statement denying any involvement in the robbery. He stated that on 22nd October, 2016 he was headed to work when he was stopped by two police officers who asked him for his identification card and Kshs. 5000/=. 7.At the conclusion of the trial, the learned magistrate (Hon.Onkwani) held that the appellant was properly identified by PW1 as one of the attackers in the robbery. The court found that the appellant was properly identified in broad day light at 9.00 a.m. and was immediately identified after the offence occurred and therefore, he was properly identified. It was the trial court’s finding that the appellant was in the company of two other persons when they robbed the complainant and the other two persons ran away with the phones. The trial court found that the evidence of the mobile phones that were never recovered was the delivery note obtained by the investigation officer from the complainant’s shop. The court rejected the appellant’s defence, finding it to be a mere denial. In the end, the court found that the prosecution had proved its case beyond reasonable doubt and found that the appellant was guilty as charged. The trial court convicted him and sentenced him to death. 8.The appellant was aggrieved by the decision of the lower court and filed an appeal against both the conviction and sentence before the High Court. 9.The High Court dismissed the appeal and upheld the conviction and sentence in a judgment delivered on 31st January, 2023. 10.The appellant was again dissatisfied with the decision of the High Court and lodged the present appeal. 11.In his memorandum of appeal, the appellant appeals against his conviction and sentence on the following grounds;a.That the trial court, convicted and sentenced him of the offence charged, notwithstanding that the prosecution failed to prove its case beyond reasonable doubt.b.That the prosecution case was riddled with contradictions, inconsistencies and fabricated evidence that resulted in a selective judgment.c.That the appellant’s defence was not given due consideration and was not displaced by the prosecution as required by law.d.That the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the vital ingredients of the offence were not proved as stipulated by law. 12.Both the appellant and the respondent filed written submissions. The appellant’s submissions are dated 27th September, 2024 while those of the respondent are dated 5th March, 2026. When the appeal came up for hearing, the appellant was represented by learned counsel Mr. Kuria while the respondent was represented by learned counsel Ms King’ara. Mr. Kuria made brief oral highlights of his client’s written submissions while the respondent’s counsel did not highlight. 13.On behalf of the appellant, it was submitted that the High Court erred when it concluded that it did not see inconsistencies in the prosecution case. To highlight these inconsistencies, it was submitted that while the complainant testified that he was attacked at 9.00 a.m. along Mfangano Street, PW3 testified that the offence took place along Ronald Ngala Street. Further, it was submitted that the trial court failed to take notice that pursuant to Dr. Kamau’s evidence it is possible that the complainant’s injury might have been sustained prior to the alleged robbery. In conclusion, it was submitted that these inconsistencies were overlooked. 14.On identification, counsel for the appellant submitted that both the trial court and High Court erred when they found that the complainant had an opportunity to see the appellant yet, he testified that the attackers held him from the back. Further, the trial court failed to warn itself on the dangers of mistaken identity and reliance on the evidence of a single identifying witness. The appellant faults the prosecution for failing to call even a single witness from Mfangano Street. It was submitted that both PW2 and PW3 were not at the scene of crime and therefore could not identify the appellant. Accordingly, it was contended that the prosecution failed in its duty to corroborate its evidence sufficiently. 15.The appellant further submitted that he was denied legal representation at the trial court and at the High Court contrary to Article 50(2) (h) of the Constitution. The appellant cited David Njoroge Macharia -vs- Republic [2011] KECA 406 (KLR) where this court stated that:“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.’’ 16.On sentencing, it was submitted that in the new wave of jurisprudence, the appellant deserves to have his sentence reviewed to the period already served in prison and in emphasis, the appellant cited Francis Karioko Muruatetu & another -vs- Republic [2020] KEHC 1390 (KLR). In his submissions, the appellant has also cited Stanley Khakubi Songa vs Republic [2018] eKLR where the Court held that there is no reason why the reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional should not apply to the offence of robbery with violence, in respect of which the Penal Code prescribes a mandatory death sentence. 17.In opposition to the appeal, the respondent submitted that the High Court analysed the evidence adduced by all the prosecution witnesses afresh and the same is captured in detail in its judgment. The respondent contended that the appellant was positively identified as it was during the day and the complainant ran after the appellant immediately after the robbery. 18.The respondent submitted that the particulars of the offence were straightforward and free from ambiguity. Further, that the witnesses tendered their evidence which was truthful,reliable and forthright and that all the ingredients that the prosecution was under the burden to prove were discharged by cogent evidence. 19.Regarding sentence, the respondent submitted that case law has now settled the issue of whether this Court can interfere with mandatory sentences. The respondent cited the case of Bernard Kimani Gacheru -vs- Republic [2002] KECA 94 (KLR) which set out the principles upon which an appellate court can interfere with a sentence. These principles as stated in the case are:-a.The sentence is manifestly excessive in the circumstances of the case.b.The trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Counsel stressed the holding in Bernard Kimani Gacheru -vs- Republic (supra) that:“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 stated is shown to exist.” 20.In conclusion, the respondent urged this Court not to interfere with the findings of the trial court and the High Court as the same were based on evidence tendered and there was no misapprehension of the evidence. 21.We have considered the record, the rival submissions and the law. The mandate of this Court in a second appeal is restricted by section 361 of the Criminal Procedure Code to matters of law only. This Court will therefore not interfere with concurrent findings of fact unless it is shown that the courts below misdirected themselves, considered irrelevant factors, failed to consider material evidence or reached plainly wrong conclusions. See M ichael Ang’ara Paul -vs- Republic [2021] KECA 1004 (KLR). 22.We find that the issues that present themselves for determination in this appeal in our view are whether the prosecution proved the case beyond reasonable doubt; whether any of the appellant’s constitutional rights were violated during the trial; and whether the death sentence imposed on the appellant was unconstitutional. 23.This Court in the case of Odhiambo & Another -vs- Republic [Omolo, Githinji & Deverell JJA] [2005] 2 KLR 176 explained the ingredients of the offence of robbery with violence as follows:“The act of being armed with a dangerous or offensive weapon is one of the elements or ingredients which distinguishes a robbery under section 296(2) and the one defined under section 295 of the Penal code. Other ingredients or elements under section 296(2) include being in the company of one or more persons or wounding, beating etc the victim and since all these are modes of committing the offence under section 296(2), the prosecution must choose and state which of those elements distinguishes the charge from the one defined in section 295.” 24.The appellant alleges that the first appellate court failed in its duty to re-evaluate, re-assess and re-analyse the evidence on record. The first appellate court is mandated to reconsider and re-evaluate the evidence on record, bearing in mind that it did not see or hear the witnesses, before making a determination of its own (see Okeno -vs- R. [1972] EA. 32, Mohamed Rama Alfani & 2 Others Vs Republic, Criminal Appeal No. 223 of 2002). Failure to properly re-evaluate the evidence on record would be a serious omission on the part of the first appellate court, and may warrant interference by this Court. 25.Did the first appellate court fulfil its duty in this case to re- evaluate, re-analyse and re-assess the evidence? We hold the opinion that it did. In its judgment, the High Court found that there were no inconsistencies in the witnesses’ testimony. The appellant’s counsel submitted that the High Court failed to take into consideration inconsistencies in the prosecution case. He submitted that while the complainant testified that he was attacked at 9.00 a.m. along Mfangano Street, PW3 testified that the offence took place along Ronald Ngala Street. In Richard Munene -vs- Republic [2018] eKLR and Kiarie -vs- Republic [1984] KLR 739, the Court distinguished trifling divergences from fundamental inconsistencies. For instance, in Richard Munene -vs- Republic [supra] the Court stated as follows:-“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 26.The question to be answered then is whether the inconsistencies highlighted by the appellant in the prosecution witnesses’ testimonies are so substantial and fundamental to the core issues as to fatally undermine the prosecution case. We are satisfied that the discrepancies highlighted by the appellant amount only to trifling inconsistencies that did not undermine the prosecution case. 27.As regards identification, counsel contends that both the trial court and the High Court failed to warn themselves on the dangers of mistaken identity and reliance on the evidence of a single identifying witness. The appellant faults the prosecution for failing to call even a single witness from Mfangano Street. It was submitted that both PW2 and PW3 were not at the scene of crime and therefore could not identify the appellant. 28.It is clear from the record that the first appellate court dwelt at length on the identification evidence accepted by the trial court. In his judgment the learned judge states that he took keen note that the appellant was identified by only one witness. In finding that the appellant was positively and properly identified, the High Court considered, firstly, it was in broad day light at 9.00 a.m., secondly, at no point did the complainant lose sight of the appellant, after the robbery, the complainant chased the appellant and apprehended him. Thirdly, the appellant was arrested immediately after the robbery. We are convinced that appellant was positively and properly identified. 29.We find that the first appellate court properly addressed itself to the identification evidence and came to the correct conclusion. The identification evidence against the appellant was sound, and both the trial court and the first appellate court were correct in basing the guilt of the appellant on it. 30.On the issue of constitutional violations, particularly the complaint about lack of legal representation, we decline to entertain the argument because it was not raised before the first appellate court. This Court cannot consider an issue that was neither canvassed nor determined at that stage and in any case, it would be improper to introduce it for the first time on a second appeal. 31.On the question of sentence, section 296(2) of the Penal Code expressly prescribes the death penalty as the lawful punishment for robbery with violence. The Supreme Court has given categorical guidance in Francis Karioko Muruatetu & Another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Muruatetu 2) that the holding in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR (Muruatetu 1) is inapplicable to the offence of robbery with violence. In Muruatetu 2, the Supreme Court, in clarifying that Muruatetu 1 was only applicable to murder cases stated as follows:-“To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offence such as treason under section 40(3), robbery with violence under section 296(2), and attempted robbery with violence under section 297(2) of the Penal Code , that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.” 32.In conclusion, we make the finding that that the conviction of the appellant was sound in law and was supported by credible and corroborated evidence. The sentence meted against him was as prescribed by law and therefore the High Court did not err by upholding both the conviction and the sentence. This appeal is therefore devoid of any merit and is hereby dismissed in its entirety. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026W. KORIR.............................. JUDGE OF APPEALL. M. NDOLO................................ JUDGE OF APPEALAHMED HASSAN................................ JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR