https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8396

Njung'e v Republic (Criminal Appeal E022 of 2021) [2026] KEHC 8396 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8396 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Appeal E022 of 2021 A Mshila, J June 12, 2026 Between Patrick Mwaniki Njung'e Appellant and Republic Respondent (Appeal originating from the Judgment delivered by Hon. C. N. Mugo (SRM) in Limuru Criminal Case No.108 of 2017 dated 20th January, 2021) Judgment Background 1.The Appellant, Patrick Mwaniki Njung’e, Was Jointly Charged Together With Peter Wamunyu Njuguna before the Senior Principal Magistrate’s Court at Limuru in Criminal Case number 108 of 2017 for the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code. The particulars were that on the 19th day of January, 2017 at Mutarakwa Centre within Kiambu County jointly with others not before the court robbed Francis Ndungu Mburu of his phone make Nokia valued at Kshs. 4,200/= and immediately after such robbery wounded the said Francis Ndungu Mburu. 2.In Count II, the Appellant was charged with Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on the 19th day of January, 2017 at Mutarakwa Centre within Kiambu County jointly with others not before court robbed Jackline Wanjiku Wambui of her phone make Samsung Galaxy S4 valued at Kshs. 45,000/= and immediately after the time of such robbery wounded the said Jackline Wanjiku Wambui. 3.In Count III, the Appellant was charged with Attempted Robbery contrary to Section 297(2) of the Penal Code. The particulars were that on the 19th day of January, 2017 at Mutarakwa Centre within Kiambu County jointly with others not before court attempted to rob Samuel Njoroge Njeri of his phone make Samsung Galaxy S4 valued at Kshs. 45,000/= and immediately after the time of such attempted robbery wounded the said Samuel Njoroge Njeri. 4.Upon being found guilty, the trial court convicted the Appellant and sentenced him to serve twenty years in prison for each count being count I and II. For Count III the Appellant was sentenced to serve 10 years imprisonment. Being aggrieved by the said conviction and sentence the Appellant has lodged this appeal based on the following amended grounds of appeal;-a.That the Learned Magistrate erred in law and in fact by failing to find that identification parade was necessary under the circumstance prior to arriving at a decision of conviction and sentencing of the Appellant and she therefore rendered a wrong decision.b.That the Learned Magistrate erred in law and in fact by failing to find that no investigations were carried out by the investigation officer in relation to the offences against the Appellant and as such no cogent evidence was tendered before the trial court by the prosecution prior to convicting and sentencing of the Appellant and she therefore rendered the a wrong decision.c.That the Learned Magistrate erred in law and in fact by failing to find that the doctor's evidence in relation to the alleged injuries suffered by the complainant and medical report thereof was necessary prior to arriving at the decision of conviction and sentencing of the Appellant and she therefore rendered a wrong decision.d.That the Learned Magistrate erred in law and in fact by relying on speculation of the evidence tendered by the prosecution prior to arriving at her decision of convicting and sentencing the Appellant and she therefore rendered a wrong decision.e.That the learned Magistrate erred in law and in fact by failing to appreciate the court record in arriving at her decision and she therefore made a wrong decision.f.That the Learned Magistrate erred in law and in fact by failing to find that there was no nexus between the Appellant and the offences he had been charged with and she therefore made a wrong decision.g.That the Learned Magistrate erred in law and in fact by failing to consider the evidence and submissions of the Appellant, and she therefore rendered a wrong decision.h.That the Learned Magistrate erred in law and in fact in failing to find that the particulars of the offence in the charge sheet had not met the threshold required by the law and she therefore made a wrong decision.i.That the Learned Magistrate erred in law and in fact by failing to find that the Appellant was a victim of circumstance prior to arriving at her decision and she therefore made a wrong decision.j.That the Learned Magistrate erred in law and in fact by failing to find that the prosecution evidence had not been corroborated prior to convicting and sentencing the Appellant and she therefore made a wrong decision.k.That the Learned Magistrate erred in law and in fact by failing to consider that the charges against the appellant were duplex and she therefore made a wrong decision.l.That the Learned Magistrate erred in law and in fact in failing to appreciate Appellant defence of alibi by the Appellant and she therefore made a wrong decision.m.That the Learned Magistrate erred in law and in fact in relying on P3 form that was never produced as exhibit by the prosecution and she therefore made a wrong decision.n.That, the Learned Magistrate erred in law and in fact by failing to consider the inconsistencies in the prosecution evidence and considering extraneous issues in convicting and sentencing the Appellant and she therefore made a wrong decision.o.That Learned Magistrate erred in law and in fact by failing to find that there was no reason given as to why the Appellant was arrested and she therefore made a wrong decision.p.That the Learned Magistrate erred in law and in fact in failing to find that the prosecution, had not proved their case beyond reasonable doubt and she therefore made a wrong decision.q.That, the Learned Magistrate erred in law and in fact in relying on evidence of the complainants only without warning herself on the dangers thereof and she therefore made a wrong decision.r.That the Learned Magistrate erred in law and in fact in failing to find that the charges against the appellant were defective as particulars of the offence in count III do not support the charge against the Appellant and she therefore made a wrong decision. 5.The prosecution called four witnesses in support of their case. Francis Ndungu Mburu (PW1) testified that a group of six men approached him and his friends, Samuel (PW2) and Jackline (PW3), at the Vineyard Pub on the evening of January 19, 2017. PW1 claimed to be able to identify the attackers, naming Peter (Accused 1) and Patrick (Accused 2), claiming to have known the latter for four years. He testified that Peter confronted him about having "good stuff" and that the gang confronted him while he was taking a toilet break at around 10:00 p.m. as they were leaving. PW1 said that during the tussle, he was robbed of his Nokia 4200 phone and struck on the forehead, hand, knee, and ribs with a blunt object. 6.PW1 stressed during his testimony that the security lights made it possible for him to see his attackers clearly, and he was able to positively identify both of the accused persons in court. He clarified that he called out for assistance during the assault and then reported the event to the police station, where he subsequently completed a P3 medical form to record his injuries. He acknowledged drinking two Pilsner beers that night during cross-examination. Still, he insisted that he could identify the attackers because he had seen them both inside and outside the bar. PW1 confirmed that his stolen phone was never found, although his injuries were recorded. 7.Samuel Njoroge Njeri (PW2) is a veterinarian who testified that he, Francis (PW1), and Jackline (PW3) were at the Vineyard Pub on the evening of January 19, 2017, when a group of men approached them at around 10:00 p.m., when the three were leaving the bar, about six men followed and attacked them from behind. According to PW2, Accused 1 (Peter Wamuyu) was the one who assaulted him first, injuring his knee, head, and shoulders. PW2 testified that the attack was spontaneous and that he witnessed Francis (PW1) being struck during the attack even though he was able to escape to the Mutarakwa Police Post and was not robbed of any property. 8.PW2 emphasized in his testimony that the scene was lit by fluorescent lights, which made it possible for him to see the attackers. He described the agony of the event, pointing out that Jackline (PW3) was snatched away during the assault and that he and Francis had to abandon her to get assistance. The following day, PW2 helped locate Jackline who they discovered was severely injured and unable to walk as such they rushed her to Tigoni Hospital. He positively identified both accused individuals as members of the group that had harassed them during court identification. 9.According to Jackline Wanjiku's (PW3) testimony, on January 19, 2017, a group of six men approached and intimidated her and her partner, Ndungu (PW1), at the Vineyard Pub. She positively identified Accused 1 (Peter) as the group's leader and pointed out that the Appellant (Patrick) was also there, both of whom were threatening her partner. Around 10:30 p.m., the group attacked them under security lights as they were leaving the bar, and Wanjiku lost both her purse and her Ksh. 45,000 Samsung Galaxy S4 phone. 10.She testified that she tried to take a boda boda to her boyfriend's house after the first attack, but the rider led her into a bush, where the assault persisted until around one (1am) in the morning. According to her testimony, Accused 1 continued to be in charge during the ordeal where she was sexually abused. She testified that a Good Samaritan helped her flee to the tarmac after she saw the headlights of a passing trailer. She completed a P3 medical form after being transported to Tigoni Hospital the following morning due to injuries that were so bad she was unable to walk. 11.NO. 65721 Sergeant John Chepnoo (PW4), an Investigating Officer from the Mutarakwa Police Post testified that Francis Ndungu (PW1) and Samuel Njoroge (PW2) reported a robbery with violence at the Mutarakwa Center on the evening of January 19, 2017. He mentioned that the next day, Jackline Wanjiku (PW3), a third complainant, complained that she had been hurt and had her Samsung Galaxy phone stolen. Chepnoo oversaw the arrest of Patrick (Accused 2/Appellant) in July 2017 and Peter Wamuyu (Accused 1) at Kwambira Shopping Center about two weeks later, based on the complainants' descriptions and identifications. Although he agreed that the stolen property was never found, he stated that he personally knew Accused 1 as a local boda boda rider. 12.Sergeant Chepnoo acknowledged under cross-examination that there was no official identification parade, citing the victims' prior identification of the accused persons as individuals they knew. He stated in his testimony that since the event allegedly happened on the road, he did not go to the Vineyard Bar, and that he did not contact cell service providers to track down the stolen phones. Furthermore, Chepnoo believed that the complainants' identification was sufficient to pursue charges, even though he was aware of Accused 2's assertion that he was working in Karen at the time of the robbery. Nevertheless, he did not record a statement from him or look into the alibi further. 13.Kenneth Wayenga Njuguna (PW3), a clinical officer with nine years of experience at Tigoni Hospital testified that he was well familiar with the handwriting of Dr. Wandati who filled the P3. He positively recognized the P3 medical forms in the case as having been completed and signed by Dr. Wandati, who was not present at the hearing as he was on leave. Given that both of them were government workers, the prosecution attempted to invoke the provisions of Section 77 of the Evidence Act to allow Dr. Njuguna present these medical records on behalf of the absent physician. 14.The defence, however, stated that the witness would not be able to respond to relevant inquiries about the actual clinical tests or the particular conditions under which the forms were filled as such asked that Dr. Wandati, the author of the document, do testify so as to guarantee a fair trial, to the defense. 15.The matter was postponed despite the court's suggestion that Njuguna may be cross-examined as if he were the maker. The doctor was repeatedly summoned to court, but he never showed up, so the prosecution ultimately closed its case without the doctor's testimony. 16.The Appellant was put on his defence where he opted to give a sworn statement and called one witness. In his defence, the Appellant, Patrick Mwaniki Njunge (DW1) stated that on 17/1/17 he was in Karen with Ngige, Mbuthia, Kimani Thuo, Toro and Dharau whom he works with at Hardy Farm. They left Limuru and proceeded to work for five (5) days and that they came back on Saturday. He testified that he was arrested at Mutarakwa four (4) months after coming back and that he was not given the reasons for his arrest. 17.Arthur Ngige Njoroge (DW2) testified that on 17/1/17 he was at work with the 2nd Accused/Appellant in Karen at Hardy Farm hence it is not possible that the Appellant to have committed the robbery as they were together. 18.The trial court was satisfied that the prosecution had proved its case beyond reasonable doubt that the accused persons were the perpetrators of the offence of robbery with violence. In the end, the accused persons, were both found guilty and they were convicted on all the three counts as charged. 19.At the hearing hereof the parties were directed to canvass the appeal by way of written submissions. Hereunder are summaries of the rival submissions; Appellant’s Submissions 20.The Appellant submitted that the court ought to have noted that according to the testimony of the Investigating Officer John Chepnoo, the Appellant was arrested in July 2017, which is more than six months after the alleged offence had occurred. The prosecution did not explain why he was arrested or what attempts were made to capture him during that time. It was submitted that the law mandated an identification parade because the alleged crime occurred at night, yet none was held. The complainants (PW1 and PW2) were drunk at the time of the occurrence and only claimed to know the Appellant during the court hearing after omitting such important information from their first police testimonies, as such their identification was said to be extremely dubious. Further, the Appellant submitted that there was lack of investigation and corroboration. The bar manager, a crucial witness, was not interviewed by the Investigating Officer, nor was the bar where the altercation is said to have started investigated. Reliance was placed in the case of John v. Republic (Criminal Appeal E001 of 2021 (2022) KEHC 12592 (KLR)(28 July 2022) (Judgment) where the court held that it may be assumed that the prosecution's evidence would have been detrimental to the state's case if a key witness was not called. Furthermore, even though P3 forms were cited, the doctor who filled them declined to appear in court, so the claimed injuries remained unsubstantiated. Reliance was placed in the case of Republic v. Nicodemus Muthiani Munyoki (2020) eKLR, where it was held that the court must be guided by medical evidence about the type and categorization of injuries in robbery cases. 21.The prosecution was said to have failed to prove the existence of the stolen items. The complainants did not present any proof that the phones they claimed were stolen, such as receipts or records from service providers. The Appellant placed reliance on the case of Pascal Musyoka Mutua v. Republic (2020) eKLR. Similarly, the case of Samuel Kariuki Wanjiku v. Republic (2019), was quoted as it made it clear that theft is the foundation of robbery if the act of stealing is not shown, the robbery case cannot stand. As stressed in the case of M'Bita Ntiro v. Mbae Mwirichia & another (2018) eKLR, the burden of proof was said to be solely on the person stating the facts under Section 107 of the Evidence Act. 22.Further, that the accusations made against the Appellant were flawed and contradictory. According to the case of Hassan Jillo Bwanamaka & another v. Republic (2018) eKLR, he was prosecuted under both Sections 295 and 296(2) of the Penal Code, which is an incorrect "duplex charge" that confuses the law. According to Section 134 of the Criminal Procedure Code and the precedent set in Yongo v. Republic (1983) KLR, 319 the charge was flawed since the details for Count 3 were likewise lacking because they did not describe what was allegedly stolen. 23.Finally, the Appellant submitted that the trial magistrate erred by ignoring the Appellant’s alibi defence. The prosecution did not refute the Appellant's and his witnesses' testimony that he was employed at Karen at the time of the offence. Since the charge sheet did not include an OB number to preserve the details of the arrest, there existed a constitutional breach under Article 49. Respondent’s Submissions 24.The Respondent submitted that none of the grounds advanced by the Appellant raises a reason to warrant this Court to disturb the findings of the trial court. It was submitted that the prosecution established that the Appellant was in the company of another and that the victims suffered injuries. Lastly it was submitted that the identification of the Appellant at the scene of crime was proper as it met the legal threshold. The Court was urged to uphold the findings of the lower court and dismiss the appeal. Issues For Determination 25.After reading the rival submissions of the parties this Court has framed the following issues for determination;i.Whether the offence of robbery with violence was properly proved to the desired threshold;ii.Whether the trial court considered the Appellants alibi defence Analysis 26.This court being the first appellate court it is incumbent upon it to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion bearing in mind that this court did not have the opportunity or benefit of hearing and seeing the witnesses as they testified; reference made to the case of Okeno vs Republic (1972) EA 32. Whether the offence of robbery with violence was properly proved to the desired threshold; 27.The issue of proper identification takes centre stage and becomes the central and important issue; 28.The evidence of the prosecution witnesses points to the incident having taken place at night at about 10.00pm; being night time there is evidence of fluorescent lighting in the testimonies of PW1, PW2 and PW3 and this court is satisfied that the conditions for identification of the Appellant were favourable; case law referred to R vs Turn bull & Others [1976] 3 ALL ER 549; 29.The Appellant contends that an identification parade ought to have been conducted; The evidence of the Investigating Officer (PW4) was that he did not conduct an identification parade as two of the complainants knew the Appellant and even gave a description which led to the arrests; 30.Upon perusal of the record it reflects that the evidence on the Complainants recognition was only of the 1st accused whom they properly described as Peter when the report was made at Mutarakwa Police Station; On record there is no mention of the Appellant being a person known to any of the complainants therefore, there is no basis for recognition; 31.Upon having re-examined the evidence on record this court is satisfied that the robbers were more than two but has doubts in the manner that the Appellant was identified and this courts considered view is that for a water tight proof of identification an identification parade ought to have been conducted out on the Appellant. 32.The case law relied on in this instance is the case of Nzaro vs Republic (1991) KAR 212 and Kiarie vs Republic (1984) KLR 739 where the Court of Appeal held that evidence of identification or recognition at night must be absolutely watertight to justify a conviction; 33.This ground of appeal is found to have merit and it is hereby allowed. 34.For the offence of robbery with violence to be established the prosecution must also prove that during the commission of this offence that immediately before or after the time of the robbery the offenders used personal violence on the victims. 35.The evidence of the Investigating Officer was that the complainants complained of being injured during the robbery and he advised them to go to hospital for treatment and he issued them with P3Forms to be filled. The doctor who attended to the complainants and filled the P3Forms was repeatedly summoned to court, but he never showed up to produce the documents, so the prosecution ultimately closed its case without the doctor's testimony. 36.This failure by the prosecution to produce the P3Form at the trial means that the injuries that were inflicted upon the complainants were never proved 37.This Court is satisfied that this ground of appeal has merit and it is hereby allowed. Whether the trial court considered the Appellants alibi defence 38.The last ground of appeal is whether the trial court considered the Appellants alibi defence. Again, it was the evidence of the Investigating Officer (PW4) that the Appellant had informed him at the time of arrest that he was at work in Karen and he had an alibi. The Investigating Officer having been duly informed before the commencement of the trial had the opportunity to make an inquiry into that alibi. 39.The record reflects that the trial court considered the Appellants defence of alibi in its judgment but arrived at the conclusion that the Appellant had raised the alibi after two years and ought to have brought it up at the earliest stage possible to enable an inquiry to be made. The trial court made a finding that the Appellant had brought it up only during cross examination and therefore at that point in time the police were unable to carry out an inquiry into it. 40.Whereas in his evidence the Investigating Officer (PW4) had admitted during cross-examination that the Appellant had indeed brought it up at the time of his arrest and despite him knowing the gravity of the offence and the sentence it carried made no effort to investigate or inquire into the alibi. 41.This Court is satisfied that the trial courts finding on the defence of alibi warrants interference as when weighed against the evidence on identification, this raises reasonable doubts in the prosecution’s case as to whether indeed the Appellant was present during the commission of the offence. The failure to carry out an identification parade also raises doubts as to whether the Appellant was positively identified; Such doubts when raised can only be resolved in favour of the Appellant. 42.This ground of appeal is found to have merit and it is hereby allowed. Findings And Determinations 43.In the light of the forgoing this court makes the following findings and determinations;i.This court finds that the Appellant was not positively identified by the complainants.ii.This court finds that the offence of robbery with violence was not properly proved to the desired threshold. The conviction is found to be unsafe.iii.This court finds that the trial court failed to properly consider the alibi defence.iv.The appeal is found to have merit and it is hereby allowed.v.The conviction is hereby quashed and sentence is hereby set aside; the Appellant be set at liberty unless otherwise lawfully held.It is so Ordered. DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 12TH DAY OF JUNE, 2026A.MSHILAJUDGEIn the presence of;Sanja/Trizah – Court AssistantsGacharia - For the StateNgigi - For the AppellantThe Appellant - Present from Kamiti Maximum