https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8453

Paul v Republic (Criminal Appeal E138 of 2023) [2026] KEHC 8453 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8453 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E138 of 2023 RA Oganyo, J June 5, 2026 Between Nicholas Murangiri Paul Appellant and Republic Respondent Judgment Introduction 1.The Appellant herein, Nicholas Murangiri Paul, was charged Meru Chief Magistrates Court criminal case No. 2160 of 2017. He faced one main count of robbery with violence contrary to section 295 as read with section 296 (2) of the penal code. 2.The particulars of the offence were that on the 4th day of October, 2017 at Ndiine sub location Rwanyange location in Imenti North Sub County within Meru County, robbed off Joanina Kaario Mwijiwe cash Kshs. 7,000/= and immediately before the time of such robbery used actual violence to the said off Joanina Kaario Mwijiwe and thereby occasioning her actual bodily harm. 3.When arraigned before Court, the Accused pleaded not guilty to the offences. After a full trial, the Accused was found guilty and convicted as charged. He was subsequently sentenced to life imprisonment on the charge of robbery with violence. The Appeal 4.The Appellant herein was aggrieved by the conviction and sentence. He filed a Petition of Appeal. The Appellant challenged the conviction and sentence in alleging that the trial magistrate erred in both facts and law by convicting him on charges that were not proven beyond reasonable doubt, that the life sentence imposed was harsh and that the prosecution’s evidence was contradictory. 5.This Court was then urged to allow the appeal by quashing the conviction, setting aside the sentence and forthwith setting the Appellant at liberty. 6.During the hearing of the appeal, the Appellant relied on his written submissions wherein he expounded on the grounds of appeal. He also referred to various decisions. 7.The prosecution also filed written submissions. Analysis 8.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 9.This was aptly stated in the case of Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect. 10.Having looked at the Appellant’s Grounds of Appeal, his Written Submissions and those of the Respondent, it appeared to this court that the issues that had been placed before it for determination were as follows:a.Whether or not the Prosecution proved its case beyond reasonable doubt; andb.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. Whether or not the Prosecution proved its case beyond reasonable doubt; and 11.Before dealing with the said aspects of the offence, the Court will render a very brief recount of the evidence adduced at the trial. Needless to say, the trial Court summarized the evidence in its judgement quite well and this Court hereby adopts the same herein by way of reference. 12.The prosecution called five witnesses in a bid to establish the charge of Robbery with Violence Contrary to Section 296(2) of the Penal Code. The complainant (PW1), Joanina Kaari Mbijwe, testified that on 4th October 2017 at about 8:00 pm, she was at her shop in Ndiine shopping centre. The appellant, Nicholas Murangiri Paul, who was known to her, came to the shop with Kshs. 20/- to buy cigarettes. As she turned after fetching the cigarettes, she found the appellant had entered the shop through an unlatched counter door. He slapped her, snatched her purse containing Kshs. 7,000/- from under the counter, and ran off. She chased him to the verandah, where he kicked her in the stomach, causing her to fall backwards, and then continued to beat and step on her. 13.Two other witnesses (PW2 and PW3) testified that they arrived at the scene and found the appellant assaulting the complainant. Both recognized the appellant as he was well known to them from the same home area. 14.The investigating officer (PW4) testified that the complainant reported the incident with a swollen face and a fractured left hand. He arrested and charged the appellant. The stolen money was not recovered. 15.PW5 Timothy Riungu produced the complainant’s P3 form prepared by Dr. Kisilu dated 10/10/2017. The form indicated the complainant had a fractured left forearm, bilateral swelling around the eyes, and blood on her clothing. 16.After the close of the prosecution’s case, the trial court found the appellant had a case to answer. The appellant gave an unsworn statement, first denying the charge but then stating he “attacked her” after she told him she had no change for a debt he had gone to pay. 17.It is on the basis of the above evidence that the Appellant was found guilty as charged, convicted and accordingly sentenced. 18.From the above factual matrix, this Court will now juxtapose it with the legal principles guiding the offence of robbery with violence. 19.A consideration of whether the offence of robbery with violence was proved now follows. 20.The offence of robbery with violence is a creation of Sections 295 and 296(2) of the Penal Code. The provisions provide as follows:295.Definition of robbery:Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.296.Punishment of robbery:1.…2.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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. 21.From the foregoing provisions, the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the aspect of violence. 22.In Kipsang v Republic [2024] KEHC 249 (KLR) the court stated as follows at paragraph 22,“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft, the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto.” [emphasis added]. 23.Section 296(2) elevates robbery to robbery with violence where the offender:a.is armed with any dangerous or offensive weapon or instrument; orb.is in company with one or more persons; orc.at or immediately before or immediately after the time of the robbery, wounds, beats, strikes, or uses any other personal violence upon any person. 24.The Court of Appeal in Oluoch v Republic [1985] KLR established that the three elements under Section 296(2) are to be read disjunctively and not conjunctively, meaning that proof of any single element is sufficient to sustain a conviction for robbery with violence. 25.On the basis of the above, this Court will now apply the law to the facts of the case. First is the issue of identification of the offender. Whether the Appellant was properly identified 26.The Appellant's written submissions challenged the sufficiency of identification evidence, suggesting contradictions between the prosecution witnesses undermined the prosecution case. It is therefore necessary for this Court to evaluate the quality and reliability of the identification evidence adduced. 27.From the record, I note that the prosecution called a total of 5 witnesses. PW1 testified that on 4th October 2017 at around 8.00 pm she was at her shop at Ndiine shopping center. The Appellant, whom she had known for about two years and who had been to the shop that very morning, came to the shop. PW2, who arrived at the scene during the attack, testified that she drew near and saw the Appellant beating the complainant. She confirmed the Appellant was a well-known neighbor living approximately 300 Meters away and that the shop verandah was lit with solar light. PW3, David Kibori, similarly testified that he arrived at the scene, found the complainant on the ground, and the Appellant assaulting her with kicks and blows at the shop verandah. He confirmed the Appellant was well known to him as a person from his home area and that there was light at the shops. 28.In Wamunga vs Republic (1989) KLR 426 the Court of Appeal stated,“…. It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction." 29.This court notes that the identification in this case was by recognition by witnesses who had prior knowledge of the Appellant. I find this as the most reliable form of identification evidence. 30.In the present case, three witnesses, PW1, PW2, and PW3, all knew the Appellant well and identified him at the scene under adequate solar lighting. There was no confusion or discrepancy in identification. The lighting conditions were favourable, the Appellant was known to all three witnesses, and PW1 had known him for two years. This Court is satisfied that the identification was safe, reliable, and made in conditions free from the possibility of error. Whether there were inconsistencies and contradictions in the prosecution evidence 31.The Appellant's principal complaint on contradictions centres on two issues:a.that PW1 said the Appellant had Kshs. 20/= while PW4 said he had handed a 50-shilling note; andb.that PW5 stated the injuries were aged more than two weeks, suggesting the complainant was not injured on the material date. 32.On the first issue I find this is a minor inconsistency that does not go to the root of the prosecution case. PW4 was not present at the scene and received the report of the incident from the complainant the following day. Minor variation in the denomination of money the Appellant tendered is peripheral to the core events of the robbery and assault, which are established by consistent eye-witness evidence. 33.On the second issue, PW5, Dr. Timothy Riungu, who produced the P3 form prepared by Dr. Kisilu, stated that the injuries were "aged more than 2 weeks." The Appellant argues this means the injuries pre-dated the incident on 4th October 2017 since the P3 form was filled on 10th October 2017, just six days after the alleged offence. 34.Critically, the P3 form itself records blood on clothing, bilateral swelling around the eye, fracture of the left forearm, and a blunt weapon as the cause of injury. All these injuries are consistent with the account given by PW1, PW2, and PW3 of the Appellant kicking and beating the complainant. I therefore find that the medical evidence, properly read, corroborates rather than undermines the prosecution case. 35.Furthermore, the Appellant in his own unsworn statement admitted attacking the complainant. He said: "She told me she did not have change. I attacked her." This admission is fatal to any challenge to the occurrence of the assault. 36.The only question remaining is whether the elements of robbery with violence were made out. Whether the prosecution proved the offense of robbery with violence beyond reasonable doubt 37.This Court notes the observation in Kipsang v Republic [2024] KEHC 249 (KLR) that, to establish robbery with violence as opposed to mere robbery, there must be actual use of violence on the person of the victim. In this case, I find that the violence was not a mere threat as it was actual physical violence causing a fracture of the left forearm, swelling around the eye, and blood on clothing. The facts squarely place this case within the ambit of Section 296(2) of the Penal Code. 38.I accordingly, am satisfied that the prosecution proved the offence of robbery with violence beyond reasonable doubt. The conviction by the trial court was safe and is hereby upheld. Sentence 39.The Appellant was sentenced to life imprisonment. 40.The High Court in Kipsang v Republic (Criminal Appeal E008 of 2023) [2024] KEHC 249 (KLR) (25 January 2024) (Judgment) stated as follows,“… An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion…” 41.Section 296(2) of the Penal Code provides that a person convicted of robbery with violence "shall be sentenced to death." The trial court, in its sentencing remarks, acknowledged the Appellant as a first offender but stated it had no choice but to impose the mandatory death sentence. 42.The constitutional landscape governing capital sentences has evolved significantly since the Supreme Court's decision in Francis Kariuki Muruatetu & Another v Republic [2017] eKLR (Muruatetu I), where the court held that the mandatory death sentence under Section 204 of the Penal Code was unconstitutional. In Mbugua & 6 Others v Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025), the court held that it was discriminatory to deny persons convicted of robbery with violence and attempted robbery with violence the right to have their mitigation considered during sentencing, while non-capital offenders enjoyed that right. The court held that under Article 27(1) of the Constitution of Kenya, persons convicted of such offences are equal before the law and must derive equal benefit from the law. 43.In this case, the trial court expressly stated it had "no choice" but to impose the sentence, indicating it did not exercise any judicial discretion whatsoever. While the Prosecutor confirmed there were no prior records and asked the court to treat the Appellant as a first offender, the Appellant offered no mitigation. The trial court imposed life imprisonment without receiving or considering a pre-sentence report. 44.I find it prudent to direct mitigation and re-sentencing in keeping with the constitutional principle that every convicted person is entitled to have their mitigation heard before a sentence is passed. The Appellant has by now served approximately seven years in custody. It is appropriate that fresh mitigation be placed before this court, including any rehabilitation certificates, conduct reports from prison, and a pre-sentence report from the Probation Office. 45.As such, and respectfully so, this Court will call for a Probation Report to be able to render itself on whether it ought to interfere with the sentence or not. Disposition 46.For the foregoing reasons, the upshot of this Court's decision is as follows:a.The Appellant's appeal against conviction is hereby dismissed. The conviction of the offence of robbery with violence against the Appellant is upheld as safe.b.The Appellant's appeal against sentence succeeds to the limited extent that the matter is remitted for mitigation and fresh sentencing.c.The determination on the appeal against the sentence shall await a Probation Officer’s Report to be availed on a date to be issued hereinafter.It is so ordered.Right of appeal 14 days. DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS AT NAIROBI ON THIS 5TH DAY OF JUNE, 2026.HON. R. A. OGANYO, MRS.JUDGE.In the presence of:Court Prosecutor: Not notified as previously directedC/Assistant:Appellant called: PresentCounsel for the appellant: Absent