https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12879

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL APPEAL NO. E031 OF 2022** **PAUL MWANGI WAIGANJO……………………..…………....APPELLANT** **VERSUS** **REPUBLIC..............................................................................RESPONDENT** **JUDGMENT** 1. This is an appeal from the conviction and sentence meted out by the Hon. M. Okuche, Principal Magistrate, in Nyeri CMCCRC No. E2364 of 2021 on 13.7.2022. 2. The Appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 3.08.2021, at about 1000hrs at Pembe Tatu estate in Nyeri Central Sub-County of Nyeri County, while armed with a pistol-like weapon, the appellant robbed Jamila Khahindi Wasike a house help to Rosemary Nyangithi Kibui a smart watch, perfume, HP desktop, four mobile phones, a CCTV system, three power extension cables, a blender, Philips iron box, Bluetooth earphones, two suit cases, TV stand, two toy cars, bunch of keys, bedside lamp and cash Kshs. 3,000, all valued at Kshs. 175,500, the property of Rosemary Nyangithi, and immediately before the time of the robbery, threatened to use personal violence against Jamila Khahindi Wasike. 3. Count 1 had an alternative charge of handling stolen goods contrary to Section 322(1) as read together with Section 322(2) of the Penal Code. The particulars are that on the 13.08.2021, at about 1400hours at Ngangarithi estate Nyeri County otherwise than in the course of stealing, the appellant dishonestly retained a perfume, four mobile phones, three power extension cables, a blender, Philips iron box, Bluetooth earphones, a suit case, TV stand, TV remote, a power bank, a bunch of keys, a bedside lamp, knowing or having reason to believe it to have been stolen or unlawfully obtained. 4. In Count II, the Appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were that on 3.8.2021, at about 1000hrs at Pembe Tatu estate in Nyeri Central Sub-County within Nyeri County, while armed with a pistol-like weapon, the appellant robbed Anna Ngima Mwangi of a Samsung mobile valued at Kshs. 20,000/= and immediately before the time of the robbery, threatened personal violence against Anna Ngima Mwangi. 5. The third count is where the Appellant was charged with possession of ammunition without a firearm certificate contrary to section 4(1) of the Firearms Act. The particulars of the offence were that on 13.8.2021, at about 1400 hours, at Ngangarithi estate in Central Sub-County within Nyeri County, he was found in possession of seventy rounds of ammunition without a firearm certificate, permit, or other lawful justification. 6. The fourth count is that of possession of an imitation firearm contrary to section 34(1) of the Firearms Act Cap. 114. The particulars are that on 13.08.2021, at about 1400hours at Ngangarithi Estate in Central Sub-County within Nyeri County, the appellant was found in possession of an imitation firearm with intent to commit a felony. 7. The Appellant was arrested on 16.8.2021. He was arraigned and entered a plea on 17.08.2021, pleading not guilty. The court heard the matter and, on 13.7.2022, found the Appellant guilty and convicted him on all 4 counts. The court sentenced him to twenty years' imprisonment for counts one and two. For counts three and four, he was sentenced to four years' imprisonment each. The sentences were to run concurrently. 8. The Appellant filed an undated Petition of Appeal on 25th August 2022 and amended grounds of appeal on 26.03.2026 setting out the following grounds of appeal: 1. That the trial court erred in both law and in fact in overlooking the fact that there was no identification parade conducted, which was a fundamental requirement in criminal law. 2. The trial court erred in law and in fact in failing to consider the time spent in remand custody in accordance with section 333(2) of the CPC. 3. The trial court erred in law and in fact in disregarding the fact that no dusting took place on the gun allegedly recovered to prove that it belonged to the appellant. 4. The trial court erred in law and in fact in failing to note that the evidence adduced was full of inconsistencies and contradictions. 5. The trial court erred in law and in fact in failing to consider that there was no search warrant issued, hence infringing fundamental rights and freedoms of the appellant. 6. That the trial magistrate erred in law and in fact in failing to consider that the key witness did not testify before the court. 7. This Honourable Court be pleased to review the 30years that was imposed upon the appellant by the trial court pursuant to Article 50(2) of the Constitution. 8. This Honourable Court be pleased to consider another more lenient sentence that may be constituted in further consideration of the appellant's mitigation. 9. The Appellant contended that the trial court erred in law and fact by relying on evidence obtained without an identification parade, failing to consider the period spent in remand custody as required under section 333(2) of the Criminal Procedure Code, and disregarding the absence of forensic examination, including fingerprint dusting of the recovered firearm. 10. The Appellant further maintained that the prosecution evidence was riddled with inconsistencies and contradictions, that the alleged search was conducted without a search warrant in violation of his constitutional rights, and that the prosecution failed to call a key witness. Finally, the Appellant urges this Court to review the sentence of twenty years' imprisonment in light of Article 50(2) of the Constitution and to impose a more lenient sentence after considering his mitigation. Evidence 1. PW1, Jamila Khaindi Wasike, testified that she was employed as a housemaid by PW3 and resided at Pembe Tatu. On the morning of 03.08.2021, she prepared the children for school and accompanied PW3 before they left. They locked both the house and the main gate. She returned to the house at about 9.00 a.m. While cooking tea, she suddenly heard a voice coming from the direction of the toilet. 2. She stated that on turning, she saw a man on her left pointing a small black pistol at her. The man was wearing a black marvin and warned her that he would kill her if she screamed. He then escorted her to PW3's bedroom, ordered her to lie face down, and tied both her hands and legs. After some time, the assailant brought PW2 into the bedroom, where PW2 was similarly tied on the hands and legs. 3. PW1 further testified that the person took around two hours in the house. He stole several items from the house. He removed the marvin as he was leaving and told them that he didn’t have any problem with them. She saw the person very well. She identified the accused person in court. The accused person, while leaving the house, picked up the house keys and locked the door from outside. He left carrying a black bag. 4. They untied themselves and got out of the house through the back door, borrowed a phone from their neighbour and called PW3, who came together with police officers. On 13.08.2021, she went to the police station where she was shown the accused person, and she identified him. She was also shown various items, which she identified as those stolen from their house, including her phone. 5. On cross examination, PW1 testified that she recorded her statement on 13.08.2021. She saw the person. The room was lit through the window. She also saw the accused person at the police station. She identified the accused person through the voice. 6. PW1 stated during cross-examination that she recorded her statement on 13.08.2021. She maintained that she saw the assailant, explaining that the room was lit by natural light entering through the window, which enabled her to observe him. She further testified that she later saw the accused at the police station and also identified him by his voice. 7. PW2 was Ann Ngima Mwangi. She had gone to visit her cousin at Pembe Tatu. On 03.08.2021 and at 10:00 a.m., she was in bed. When she woke, she found a person in the house wearing dark green overalls. He was in the kitchen and also wearing a balaclava. The eyes and mouth were exposed. The person was armed with a pistol, which he pointed at her. He took her to the master bedroom, where she found PW1 tied at the hands and legs. He forced PW2 to lie down and tied her hands and legs. When she woke, she found her Samsung phone missing. The Appellant picked several items from the house and packed them into a suitcase. When he left the house, he removed the balaclava so that PW2 could see his face. 8. PW2 untied herself and later PWI. They went to the neighbour’s house, borrowed a phone, and called PW3, who came with the police. On 13.08.2021, they were called to Nyeri Police Station. She identified the Appellant at the police station. She also identified several items which were recovered. 9. PW3, Rosemary Nangithi who gave evidence that she lives in Pembe Tatu with PW1 and PW2. On 3.08.2021, she received a call from PW2 that they had been attacked in the house and robbed of several items. Together with her husband, she rushed home and also called the police. She found several items missing. PW1 and PW2 narrated to her what had happened. The police came to the scene around the same time and took inventory of the items stolen. One of the items stolen was a CCTV camera which is connected to her phone. When the camera is switched on, it sends an alert to her. 10. On 13.08.2021, the CCTV sent her live images showing a person at a shop. She called PW9 and shared the images with him. PW9 identified the person and informed her that the person was at Prestige Plaza. She left the police to conduct their investigation. The police later called her to the station, where she went together with PW2. The police brought the Appellant, and he was positively identified by PW2 as the person who robbed them. PW3, accompanied by the police and the Appellant, went to the Appellant’s house at Ngangarithi Estate. She identified her properties, which were found in the house. 11. PW4 was Charles Kimathi. He is a CCTV Technician operating a shop at Prestige Plaza. On 11.8.2021, he was in the office when a male customer brought a CCTV camera for confirmation whether it was operating or not. He connected it to the internet and found that it was connected to an account. He asked the person to give him the account number, but he never gave him the credentials so that he could unbind the account. On 13.8.2021, while at the office, a certain person went there and made enquiries about the CCTV camera. He testified that he accessed and viewed the CCTV footage remotely through the internet, having previously connected the CCTV system to the internet. The footage included images of the suspect, after which he explained the history and operation of the CCTV system. They subsequently contacted the Appellant, and when he responded and appeared, he was arrested. 12. PW5, Simon Mugambi, testified that he knew the Appellant. He was the Appellant’s Landlord at Ngangarithi for six months. He paid monthly rent of Kshs. 2,500/=, and occupied house No. A1. On 13.8.2021, he was called by his caretaker, who told him that police officers had invaded his premises. They arrested the Appellant and were taking items from his house. He went to the police station the following day and identified the Appellant. The police showed him some electronics and ammunition recovered from the Appellant’s house. 13. PW6, PC Oscar Kosgei, testified that on 3.8.2021 he was on patrol when he was asked by OCS to rush to Pembe Tatu estate to assist a member of the public who had been robbed. He arrived at the house and found the gate wide open. Two ladies emerged from a room in the house. He introduced himself as a police officer. The two ladies narrated the incident to him. They combed the area but made no recovery. On 13.8.2021, using CCTV footage brought to the station, they traced the person operating the CCTV at Prestige Plaza. That person called the appellant, who was arrested. The appellant took them to Ngangarithi estate; he showed them his house and conducted a search. They recovered the items listed in the charge sheet. They took inventory of the recoveries, arrested the appellant and charged him. 14. PW7 was PC Stephen Njeru. He stated that on 13.8.2021, together with his colleagues, they were called by the OCS. He showed them CCTV footage from a shop at Prestige Plaza. They went to the shop and found PW3. He told them that the camera had been taken there by a person known to him. He called the Appellant, who came, and they arrested him. After interrogation, the Appellant took them to his house. In the house, they made recoveries belonging to the complainant. They also recovered 70 rounds of ammunition, a homemade gun, a black balaclava and green overalls. 15. PW8 is the firearm examiner attached to the Ballistics Department. On 20th September 2021, while at the laboratory, he received from PC Asimith Josephine the following exhibits: A1 to A70 – seventy rounds of ammunition, and B – imitation firearm. He found that A1 to A70 were 9x19mm calibre. They were suitable for use in firearms such as a Browning pistol, a Taurus pistol, a Beretta pistol, amongst others. He found that the rounds were complete in their component parts. He also found that the primer and propellant power tests were positive. He formed the opinion that exhibits A1 to A70 were all live, capable of being fired, and were ammunition. 16. He also examined exhibit B. It was an imitation firearm. The parts are metallic in nature. The imitation cannot accommodate ammunition, and it cannot fire any ammunition. However, the same can be mistaken for a conventional firearm. He produced his report as an exhibit. 17. PW9 was Dennis Obura, the investigating officer. He testified that on 3.8.2021, it was reported that a lone robber, his face covered by a black balaclava and armed with what appeared to be a pistol, had entered a house. He visited the scene and found two ladies in the house. He recorded their statements and then commenced investigations. On 13.08.2021, they came across a lead. The stolen CCTV camera transmitted images to the owner's telephone. They went to the shop and found PW4, the technician, who explained how he obtained the camera. He called the Appellant, who was arrested. Thereafter, the Appellant led them to his house, where they found items which the complainant identified as hers. He prepared an inventory of the recovered items. They called PW5, who confirmed that the Appellant was his tenant. PW9 later sent the firearm and the ammunition to the firearm examiner for analysis. 18. On cross-examination, PW9 stated that the report was made by one Jamila. He further testified that in breaking the Appellant’s house, he was with PC Oscar, PC Gitonga, PC Njagi and Rosemary. He stated that the Appellant signed the inventory of the recoveries. 1. On 22.03.2022, the trial court found that the prosecution had established a prima facie case against the Appellant and that he had a case to answer. The Appellant was placed on his defence after complying with section 211 of the Criminal Procedure Code. 2. DW1 was the Appellant. He was a second-hand cloth seller. In August 2021, he was called to Prestige Plaza by PW6. He went to Prestige Plaza and met PW6, who introduced himself as a police officer. The shop where they met specialized in CCTV camera repair. PW6 asked him whether he knew Peter’s home, and he answered in the affirmative. At the shop, they met Simon, who told them that Peter was not present. From there, they went to Nyeri Police Station. He was asked whether he knew Mwangi, and he confirmed he was his customer. He took the police to his house at Ngangarithi. The police made no recoveries. They then took him back to the police station. The officer told him that a CCTV had been stolen the previous night. The following day, the police told him that the items at the police station had been recovered from his house. Submissions 1. The Appellant filed submissions on 27th March 2026 by which it was submitted that he was convicted for the charge of robbery with violence contrary to section 296(2) of the CPC. The trial court, in its discretion, imposed twenty years' imprisonment, which, in the instant submissions, is appealed for consideration, being reviewed to another lenient one that may accrue to the appellant pursuant to article 50(2)(p) of the Constitution. He submitted that the sentence imposed came after the learned magistrate took into consideration mitigation factors of the appellant, as recorded during trial, that: *“The accused person is a young man with a young family, with one child. I seek leniency.”* 1. The appellant relied on the case of *S v Mchunu and Another (AR24/11) [2012] ZAKZPHC 6,* which is a decision of the High Court of South Africa sitting at Pietermaritzburg, KwaZulu-Natal High Court, where it was indicated that issues of sentencing are ones that vest a discretion in the trial court. He urged the court to find what the court considers a fair and appropriate sentence should be. He posited that the purpose of sentence was set out in **S v Scott-Crossley (677/06) [2007] ZASCA 127; 2008 (1) SA 404 (SCA),** where the Supreme Court of Appeal of South Africa [Mthiyane, Cloete et Ponnan JJA] held as follows: [35] Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. Against that must be weighed the appellant’s prospects of reformation and rehabilitation, which appear to be good. It is true that it is in the interests of justice that crime should be punished. However, excessive punishment serves neither the interests of justice nor those of society. 1. The Appellant further submitted that the sentence imposed could be described as one that sacrificed him on the altar of deterrence. He prayed that this court reviews the sentence of the Appellant in light of judicial sentencing policy guidelines that reflect rehabilitation and reformation. He was a first offender, remorseful and suitable for rehabilitation. 2. The Respondent filed submissions on 25th March 2026 by which the appeal was opposed in its entirety. The Respondent cited the case of [**Jeremiah Oloo Odira v Republic** [2018] KEHC 2195 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/2195/eng%402018-11-23), where AC Mrima J elucidated the offence of robbery with violence as follows; 21. 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. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence. 22. On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: - (a) The offender is armed with any dangerous or offensive weapon or instrument, or (b) The offender is in the company of one or more other person or persons, or (c) The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person. 1. The Respondent submitted the offence of robbery with violence is committed when robbery is proved and further if one of the following three ingredients are established; the offender is armed with any dangerous or offensive weapon or instrument; the offender is in company with one or more other person or persons; or the offender at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person. 2. It is their submissions that from the evidence of PW1, PW2 and PW3 a robbery happened and at that time the appellant was armed with a pistol-like weapon. That the complainants (PW2 and PW3) were indeed robbed of their items as captured in the charge sheet and as also stated during trial. 3. On conviction and sentence, the Respondent submitted that the trial court was lenient enough to sentence the appellant to serve twenty years imprisonment only for counts one and two and the sentence to run concurrently for counts three and four. The appellant is therefore not entitled to review of sentence as the twenty-year sentence is commensurate with the offence; in any event, the appellant is not serving an excessive sentence. Analysis 1. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in **Pandya vs Republic** [1957] EA 336 held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 1. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of **Okeno v Republic [1972] EA 32 at 36**, the East Africa Court of Appeal stated the following on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 1. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to *Halsbury’s Laws of England*, 4th Edition, Volume 17, paras 13 and 14: **The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.** 1. Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision *in Re Winship 397 US 358 {1970},* at page 36164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 1. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in **Miller vs. Ministry of Pensions,** [1947] 2 ALL ER 372 had this to say: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 1. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 1. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 2. I have considered the trial court’s proceedings, the Petition of Appeal, Amended Grounds of Appeal, the Appellant’s submissions and the Respondent’s submissions and I identify issues for determination as follows; 1. Whether the ingredients of robbery with violence were established; 2. Whether there was sufficient evidence linking the Appellant to the offences; 3. Whether the Appellant’s defence was properly considered; and 4. Whether the sentence imposed was excessive or harsh 3. On the first issue, the Appellant was convicted of two counts of robbery with violence. The starting point is the legal provision that provides the ingredients of the offence. The offence of robbery with violence is set out in section 296(2) of the Penal Code. The offence of robbery is set out in section 295 of the Penal Code, while that of robbery with violence is set out in section 296(2) of the Penal Code. In considering the offence of robbery with violence under section 296 (2) of the Penal Code, regard must be had to section 295 of the Penal Code which defines robbery in the following terms: **“295. 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.”** 1. To prove the offence of robbery with violence, the element of stealing must be established, together with one or more of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. Regard should be had to the elements of robbery with violence as enunciated in the case of **Oluoch & another v Republic** [2022] KECA 1260 (KLR), where the Court of Appeal stated as follows: For the prosecution to sustain a conviction for the offence of robbery with violence, it needs to establish and prove three essential ingredients as provided for under Section 296(2) of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1948/81), stated in the case of *Oluoch v Republic [1985] KLR 549* as follows: “The offender is armed with any dangerous or offensive weapon or instrument; the offender is in the company of one or more person or persons; or 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. 1. Therefore, from the case of **Oluoch v Republic [1985] KLR 549**, the essential elements of the offence of robbery with violence are distilled as follows: * 1. The offender is armed with any dangerous and offensive weapon or instrument; 2. The offender is in company with one or more persons; 3. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim. 2. In the present case, PW1 testified that on 03.08.2021, at about 1000 hours, while in the house at Pembe Tatu estate, the Appellant, armed with a pistol-like weapon, robbed her of the items listed in the charge sheet, and immediately before the robbery, he threatened to use personal violence against PW1. In addition, PW2 also testified that, while in the same house at Pembe Tatu estate on 3rd August 2021, the Appellant, armed with a pistol-like weapon, robbed her of a Samsung mobile valued at Kshs. 20,000, and immediately before the robbery, he threatened personal violence against PW2. 3. The Appellant contends that the prosecution's case was riddled with inconsistencies and contradictions, particularly in the testimonies of PW1, PW2, PW3, and PW4. I have carefully re-evaluated the entire record and find that this contention is not borne out by the evidence. The testimonies of the prosecution witnesses were substantially consistent on the material particulars of the offence, and I discern no contradiction capable of weakening the prosecution's case. Indeed, the Appellant did not identify any material contradictions. 4. In assessing allegations of inconsistencies and contradictions, the court must consider their nature, extent, and materiality. Not every discrepancy is fatal to the prosecution's case. The court must bear in mind the inherent frailties of human recollection, differences in perception, and the varying circumstances in which witnesses observe and later recount events. Variations arising from differences in position or perspective, the passage of time, or the sequence in which events unfolded are natural and expected. 5. By way of illustration, if two witnesses observe a robber standing between them, one may describe the robber as on the right while the other describes him as on the left. Both accounts may be entirely truthful, with the apparent inconsistency attributable solely to their respective vantage points. Similarly, witnesses who join an incident at different stages or observe only parts of a continuous sequence of events are likely to recount different aspects of the occurrence without necessarily contradicting one another. 6. Accordingly, only contradictions that relate to material facts and create doubt about the occurrence of the offence or the identity of the perpetrator can undermine the prosecution's case. Minor discrepancies that do not go to the root of the charge are indicative of truthful, independent recollections rather than rehearsed testimony. In the present case, the alleged inconsistencies fall into the latter category. They neither affect the essential ingredients of the offence nor diminish the credibility of the prosecution witnesses. I therefore find that the evidence of PW1, PW2, PW3, and PW4 was coherent, mutually corroborative on the material particulars, and sufficient to sustain the conviction. Contradictions and inconsistencies were addressed in **Watu v Republic [2016] KECA 696 (KLR),** where the Court of Appeal [MS Asike-Makhandia, W Ouko & K M'Inoti, JJA] held that: 17. The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. 18. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 19. In Dickson Elia Nsamba Shapwata & Another v. The Republic, Cr. App. No. 92 of 2007, the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt: “In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 1. Consequently, it was the primary duty of the trial court to carefully analyse the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. 2. Consequently, it was the primary duty of the trial court to carefully analyse the conflicting evidence, reconcile any material inconsistencies where possible, and, on the basis of sound judicial reasoning, determine which version of the evidence was credible and deserving of acceptance. In [**Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/523/eng%402014-06-20), the Court of Appeal [Githinji, Musinga & M’Inoti, JJ.A] held that: The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured device for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 1. The court must evaluate the nature, extent and materiality of any contradictions in the evidence. Where material contradictions are established and remain unexplained, they may undermine the credibility of the witness and, depending on their significance, justify the rejection of the evidence. However, not every inconsistency is fatal; only those that go to the substance of the prosecution's case or create reasonable doubt as to the truthfulness or reliability of the witness are likely to affect the weight to be attached to the testimony. It was observed in **Twehangane Alfred vs. Uganda,** Crim App. No. 139 of 2001, [2003] UGCA, 6 as follows: With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 1. The elements of the offence of robbery with violence are disjunctive. It is sufficient for the prosecution to prove any one of the statutory ingredients set out under section 296(2) of the Penal Code to sustain a conviction. In the case of [**Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR)**,](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/480/eng%402013-07-12) the Court of Appeal [Nambuye, Kiage & Murgor, JJ.A] posited as follows: The court’s circumspective approach would be entirely understandable given the seriousness of the charge. The elements of the offence under Section 296 (2) are, however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction. This was considered at length by this Court in [Johana Ndungu v Republic [1996] KECA 187 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1996/187/eng%401996-11-20): “In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is the use of or threat to use actual violence against any person or property at or immediately after the commission of the act of stealing to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery is presupposed in the three sets of circumstances prescribed in section 296 (2) which we give below and any one of which, if proved, will constitute the offence under the sub-section.” 1. If the offender is armed with any dangerous or offensive weapon or instrument, or 2. If he is in company with one or more other persons, or 3. If, at or immediately before or immediately after the time of the robbery, he wounds beats, strikes or uses any other violence to any person. Analysing the first set of circumstances, the essential ingredient apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact needs to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in Section 295 of the Penal Code, the offender was armed in the manner afore-described, then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him. In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances. With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.” We respectfully agree with the foregoing analysis and, applying the same to the appeal before us harbour no doubt that not one (which would have sufficed) but all three elements were present and proved and the two courts below were correct in their conclusions. 1. Having carefully reviewed the record against the statutory ingredients of the offence of robbery with violence, I am satisfied that the prosecution proved that the Appellant was armed with a pistol-like weapon during the commission of the robberies. PW1’s evidence established that the Appellant was armed with what appeared to be a pistol, which he used to threaten and subdue the victims. Armed with that weapon, he robbed PW1 of the items specified in the charge sheet and PW2 of her mobile phone. Accordingly, the prosecution proved the ingredient that the offender was armed with a dangerous or offensive weapon or instrument. 2. It is immaterial that the weapon could not possibly shoot. Section 388(3) comes in handy: *It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.* 1. In any event, the evidence also established the use of actual violence against the complainants. The Appellant tied the hands and legs of both PW1 and PW2, pointed a pistol-like weapon at them, and threatened to kill them if they raised an alarm. These acts constituted personal violence and intimidation during the commission of the robbery. Accordingly, even apart from being armed with a dangerous weapon, the prosecution proved the additional ingredient of violence. I am therefore satisfied that the offence of robbery with violence was proved beyond reasonable doubt. 2. On the second issue as to whether there was sufficient evidence linking the Appellant to the offence, identification is crucial in cases of robbery with violence. In the case of **Patrick Opondo Opollo & Another v Republic Criminal Appeal No. 23 of 2014**, the Court emphasized the need for courts to scrutinize the conditions of identification to ensure its reliability. The witnesses recognized the appellant. Recognition was addressed in the case of **Reuben Taabu Anjononi,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR**), where the Court of Appeal (Madan, Law & Potter JJ A) posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 1. PW1 testified that the robbery took place during the day at around 10:00 am. The Appellant removed his marvin as he was leaving after the robbery and told them that he didn’t have any problem with them. PW1 stated that she saw the person very well. She identified the Appellant in court and recognised him. 2. Further, PW2 corroborated PW1’s evidence, stating that she saw the Appellant’s face when he removed the balaclava. On 13.08.2021, PW2 was called at Nyeri Police Station. She was shown the Appellant, whom she identified. 3. The Appellant contends that the trial court erred by failing to appreciate that no identification parade was conducted and that PW1 and PW2 could not have identified him because they had been ordered to lie face down during the robbery. He further submits that the prosecution failed to establish how the CCTV system came to be traced to Bradycom Shop. However, this latter contention is not borne out by the evidence on record. The prosecution adduced evidence explaining the chain of events that led to the tracing of the CCTV system, and the record does not support the Appellant's assertion that its recovery or identification was left unexplained. 4. The next matter is recent possession. Some of the goods that were lost were recovered from the appellant. The goods recovered were perfume, four mobile phones, three power extension cables, a blender, a Philips iron box, Bluetooth earphones, a suitcase, a TV stand, a TV remote, a power bank, a bunch of keys, and a bedside lamp. These were not claimed or shown to belong to the appellant. More importantly, they belong to the complainant. 5. The offence occurred on 3.08.2021. The recovery was on 13.08.2021. This qualified as recent possession. In the case of [**Isaac Ng’ang’a Kahiga & another v Republic [2006] KECA 137 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2006/137/eng%402006-08-04)**,** the Court of Appeal [P.K. Tunoi, S.E.O. Bosire and E.M. Githinji] stated as follows: It is trite that 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 the 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 to the other.” 1. The doctrine of recent possession can only be invoked where the prosecution proves that the accused was in actual or constructive possession of the stolen property. Mere proximity to, or association with, the property is insufficient. The prosecution must establish positive possession, that is, that the accused exercised knowledge of and control over the property. In the case of [**David Mugo Kimunge v Republic [2015] KECA 730 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/730/eng%402015-05-13), the Court of Appeal [Waki, Nambuye & Kiage, JJ.A] discussed recent possession as follows: 17. Has the doctrine been properly summarised in that case, or to ask a more fundamental question, is it a doctrine at all? That question was explored at length in the case of **Kowlyk (supra),** which involved the offence of *‘break, enter and theft*’ under Canadian law, and the only issue was possession of recently stolen items. The items were found in a house the appellant shared with his brother, some in his bedroom. On entering the house with the police, his brother shouted *“They got us”*and the appellant tried to leave through the window but was restrained. Delivering the judgment for the majority, McIntyre J**.** explored at length the history of the doctrine in various decisions from its roots in the nineteenth century in England and Canada and said in part: “Before going further, it will be worthwhile to recognise what is involved in the so-called doctrine of recent possession. It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it. Laskin J. (as he then was) (Hall J. concurring) in a concurring judgment in R. v. Graham, supra, said at p. 215: “The use of the term 'presumption', which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is 'inference'. In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.” He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre-trial explanation of such possession were given by the accused and if it possessed that degree of contemporaneity making evidence of it admissible, no adverse inference could be drawn on the basis of recent possession alone if the explanation were one which could reasonably be true. Implicit in Laskin J.'s words that recent possession alone will not justify an inference of guilt, where a contemporaneous explanation has been offered, is the proposition that in the absence of such explanation recent possession alone is quite sufficient to raise a factual inference of theft.” 18. In the end, the majority of the Supreme Court accepted the following summary of the doctrine:- ***“Upon proof of the unexplained possession of recently stolen property, the trier of fact may –but not must-- draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.”*** 19. There is no significant disparity between the English /Canadian position and what has been accepted as the applicable doctrine in our courts. Applying that learning to the case before us, we are of the view that the inference arising from the unexplained possession of stolen goods is one of fact. The trier of fact in this case was the Principal Magistrate’s court which had the advantage of seeing and hearing the witnesses testify before it. As always, the first appellate and the second appellate courts must of necessity give allowance for this advantage and be slow to interfere unless there was no evidence to support the findings or the findings were perverse. It is also clear from the decisions that the truth of the explanation alluded to in the doctrine is not the standard applicable. Nor is it acceptable that any fanciful or concocted explanation will suffice. The explanation must pass the muster of reasonableness and plausibility. Did it do so in the case before us? 1. The Court of Appeal set out the elements of the doctrine of recent possession in the case of [**Arum v Republic [2006] KECA 385 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2006/385/eng%402006-06-16), where the court [PK Tunoi, EO O'Kubasu & JWO Otieno, JJA] posited as follows: 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. 1. The burden of explaining the recent possession is on the Appellants. The state had a duty to prove the occurrence of the offence. Its burden is evidential only and does not relieve the prosecution of the need to prove its case to the required standard. That explanation needs only to be plausible. This was set out in [**Malingi Katana Malingi v Republic [1989] KEHC 109 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/1989/109/eng%401989-10-13)**,** where S E O Bosire J, as he then was, posited as follows: I propose to first deal with the issue of law raised with regard to the doctrine of recent possession. The doctrine in one of fact. It is a presumption of fact arising under section 119 of the Evidence Act, Cap 80 Laws of Kenya which provides: “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” So as applies to the offence of theft or handling, recent possession raises a presumption of fact that the one in possession is either the thief or guilty receiver (*R – v – Hassan s/o Mohamed*(1948) 25 EACA 121). The trial court has the duty to decide whether from the facts and circumstances of the particular case under consideration the accused person either stole the item or was a guilty or innocent receiver. By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver. 1. The same presumption was addressed in the case of **Paul Mwita Robi V Republic [2010] KECA 381 (KLR),** where the Court of Appeal [R.S.C. Omolo, J.W. Onyango Otieno And J.G. Nyamu JJ.A] observed that: Lastly, Mr. Oguso submitted that the appellant had no requirement to explain his recent possession of a stolen bicycle and that the burden remained throughout on the prosecution. That, with respect, is not the law. Once an accused person is found in possession of recently stolen property, the facts of how he came into possession of the recently stolen property are especially within the knowledge of the accused and, pursuant to the provisions of section 111(1) of the Evidence Act, **Chapter 80**, the accused has to discharge that burden. The provision states: “When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him.” Thus, while the law is that generally in criminal trials, the prosecution has the burden of proving the case against the accused throughout and that burden does not shift to the accused, however, in a case where one is found in possession of recently stolen property like in this case, the evidential burden shifts to him to explain his possession. That explanation only needs to be a plausible one, but he needs to put it forward for the court’s consideration. This is what the superior court was alluding to in its judgment. 1. The doctrine of recent possession was further elucidated in the case of [**William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic [2022] KECA 23 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2022/23/eng%402022-01-21), the Court of Appeal [A Mbogholi-Msagha, SG Kairu & P Nyamweya, JJA] stated as follows regarding the doctrine: We start with the question whether the doctrine of recent possession was properly invoked. As regards the circumstances under which the doctrine of recent possession may apply, in [Athuman Salim Athuman v Republic [2016] KECA 697 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/697/eng%402016-03-11), this Court held that: “The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how be came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See Malingi v. Republic (1989) KLR 225 h. and Hassan v. Republic (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga Alias Peter Ng’ang’a Kahiga V. Republic, CR. APP. NO. 272 Of 2005, where this Court stated: “It is trite that 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 the 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 to the other.” … that the property was recently stolen, having been recovered within hours of having been stolen. As stated by the Supreme Court of Uganda in Bogere Moses & Another vs. Uganda, Cr. App. No. 1 of 1997, that: “It ought to be realised that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raises a very strong presumption of participation in the stealing, so that if there is no innocent explanation of the possession, the evidence is even stronger and more dependable than eyewitness evidence of identification in a nocturnal event. This is especially so because invariably the former is independently verifiable, while the latter solely depends on the credibility of the eyewitness.” 26. Moreover, the evidence of recent possession presented corroborated the evidence of identification of the appellant and his co-accused by PW2. There is no merit therefore in the complaint that the High Court and the trial Court improperly invoked the doctrine of recent possession. 1. The possession itself must be sufficient. It cannot be that the good must be physically in the hands. Even having control over the same is adequate. The Supreme Court of Uganda, sitting in Mengo [M: WAMBUZI, C.J., TSEKOOKO, J.S.C., KAROKORA J.S.C..], in **[Bogere & Anor v Uganda (Criminal Appeal No. 1 of 1997) [1998] UGHCCRD 15 (6 July 1998](https://ulii.org/en/akn/ug/judgment/ughccrd/1998/15/eng%401998-07-06)**[)](https://ulii.org/en/akn/ug/judgment/ughccrd/1998/15/eng%401998-07-06) stated as doth: **It ought to be realized that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raises a very strong presumption of participation in the stealing so that if there is no innocent explanation of the possession, the evidence is even stronger and more dependable than eye-witness evidence of identification in a nocturnal event. This is especially so because invariably the former is independently verifiable while the latter solely depends on the credibility of the eyewitness.** 1. It must also be realised that the question of proof can be accomplished by circumstantial evidence. In the case of [**Maitanyi v Republic [1986] KECA 39 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/39/eng%401986-09-19), the court of appeal [Nyarangi, Platt & Gachuhi JJA] addressed the question of a single identifying witness as follows: Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition: “Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 1. Circumstantial evidence must be inconsistent with an accused’s innocence. In the case of the first principle governing reliance on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. In the case of [**Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/743/eng%402018-01-26)**,** the Court of Appeal [P.Kihara Kariuki, PCA, M’Inoti & Murgor, JJ.A] addressed circumstantial evidence as follows: However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21: “It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.” (See also Musili Tulo v. Republic Cr. App. No. 30 of 2013). Before circumstantial evidence can form the basis of a conviction, however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 this Court set out the conditions as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” (See also Sawe v. Republic (supra) and GMI v. Republic, Cr. Ap. No. 308 of 2011. In addition, the prosecution must establish that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt. (See Teper v. R. [1952] All ER 480 and Musoke v. R. [1958] EA 715). In Dhalay Singh v Republic, Cr App. No. 10 of 1997, this Court reiterated this principle as follows: “For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an accused is entitled to an acquittal.” 1. The Court of Appeal was overruled by the Supreme Court [DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola,SCJJ] in the case reported as [**Republic v Mohammed & another [2019] KESC 48 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/48/eng%402019-03-15), which stated on the same limb as follows; The law on the definition, application and reliability of circumstantial evidence has, for decades, been well settled in common law as well as other jurisdictions. Circumstantial evidence is “indirect [or] oblique evidence … that is not given by eyewitness testimony.” It is “[a]n indirect form of proof, permitting inferences from the circumstances surrounding disputed questions of fact.”[6](https://kenyalaw.org/akn/ke/judgment/kesc/2019/48/eng%402019-03-15#arguments__dvs_nn_5__para_55__p_1__authorialNote_1) It is also said to be “[e]vidence of some collateral fact, from which the existence or non-existence of some fact in question may be inferred as a probable consequence… On its application, circumstantial evidence is like any other evidence. Though it finds its probative value in reasonable, and not speculative, inferences to be drawn from the facts of a case,8 and, in contrast to direct testimonial evidence, it is conceptualized in circumstances surrounding disputed questions of fact, circumstantial evidence should never be given a derogatory tag. Jowitt’s Dictionary of English Law, 4th Edition, states thus of circumstantial evidence: … with circumstantial evidence, everything depends on the context: circumstantial evidence can sometimes amount to overwhelming proof of guilt, as where the accused had the opportunity to commit a burglary, and items taken from the burgled house are found in his lock-up garage, … a fingerprint recovered from the window forced open by the burglar matches the accused’s fingerprints, … [or where there is] a … DNA match between the accused’s control sample and genetic material recovered from the scene of the crime ….” 57. This is why, way back in 1928, the English Court of Appeal asserted that circumstantial evidence “is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics.” However, conclusive as it may be, as it has long been established, caution is always advised in basing a conviction solely upon circumstantial evidence. The Court “should proceed with circumspection when drawing firm inferences from circumstantial evidence.” [11](https://kenyalaw.org/akn/ke/judgment/kesc/2019/48/eng%402019-03-15#arguments__dvs_nn_5__para_58__p_1__authorialNote_1) The court should also consider circumstantial evidence in its totality and not in piecemeal. As the Privy Council stated in [Teper v. R](https://www.studocu.com/row/document/university-of-nairobi/evidence-law/teper-v-r-summary/83674009%22%20%5Ct%20%22_blank) [1952] AC at p. 489 “, Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another.”(See R v Taylor Weaver and Donovan (1928) 21 Cr. App. R 20, [Teper v R](https://www.studocu.com/row/document/university-of-nairobi/evidence-law/teper-v-r-summary/83674009) [1952] A.C. 480 PC as [489] and [S v Reddy & others](https://www.saflii.org/za/cases/ZASCA/1996/55.html) 1996 (2) SACR 1 (A). As was further stated in the case of [Musili v Republic](https://kenyalaw.org/akn/ke/judgment/keca/2014/412%22%20%5Ct%20%22_blank) CRA No 30 of 2013 (UR) “ to convict on the basis of circumstantial evidence, the chain of events must be so complete that it establishes the culpability of the appellant, and no one else without any reasonable doubt .” The chain must never be broken at any stage.[16](https://kenyalaw.org/akn/ke/judgment/kesc/2019/48/eng%402019-03-15#arguments__dvs_nn_5__para_60__p_1__authorialNote_1) In other words, there “must be no other co-existing circumstances weakening the chain of circumstances relied on” and the circumstances from which the guilt inference is drawn must be of definite tendency and unerringly pointing towards the guilt of the accused. “ Suspicion, however strong, cannot provide a basis for inferring guilt. 1. The evidence on record is that after the arrest of the Appellant, he led the police to his house in Ngangarithi. They opened the house by breaking in since the Appellant claimed he didn’t have keys to the house. The recoveries were made in the Appellant's house and the items indicated in the charge sheet. The items were identified by PW2 and PW3 as items earlier stolen from the complainant’s house. PW5 was called to give evidence. He confirmed that the suspect was his tenant and lived in the house where the recoveries were made. On this limb, the Supreme Court in **Republic v Mohammed & another(supra)** posited as follows: 48. We agree with the appellant that it is a matter of general public importance that the Police are given the freedom to carry out investigations with a view to detecting crimes. We also agree with it that interviewing suspects is a standard operating procedure in criminal investigations. In such interviews, Police are entitled to confront suspects with any report they may have received about the suspects’ commission or involvement in the commission of a crime and demand an explanation. In response, a suspect may offer an explanation. If it happens that the explanation the suspect gives is an admission of a material fact, ideally the Police are required to invoke the provisions of section 25A of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46). If they do not, bearing in mind the distinction between an admission and a confession as stated above, such admission is admissible in evidence but, unlike a confession, it cannot on its own found a conviction. It will require corroboration to found a conviction. It would be absurd if admissions made in such circumstances were to be held inadmissible in evidence. It follows therefore that admissions, though not meeting the criteria set out in section 25A (1) of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46), are admissible. In the circumstances, we find that in its holding that “information from an accused person leading to discovery of evidence is not admissible outside a confession….”, the Court of Appeal equated evidence proceeding from a suspect leading to discovery to a confession. 49.The Court of Appeal noted, quite aptly, that it was never the appellant’s case that the respondents had confessed to committing the offences that they were charged with. This appeal therefore, cannot turn on section 25A of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46) because the respondents did not make a confession in terms of sections 25 and 25A of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46). As such, we disagree with the appellant’s contention and the Court of Appeal decisions in ([Douglas Thiongo Kibocha v Republic](https://kenyalaw.org/akn/ke/judgment/kehc/2009/1818) [2009] eKLR and [Milton Kabulit & Others v. Republic](https://kenyalaw.org/akn/ke/judgment/keca/2015/105) [2015] eKLR) that there is an apparent conflict between sections 25A(1) and 111(1) of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46). The two sections relate to different scenarios and result in different effects. While, as stated, a confession can of itself found a conviction, when a court is confronted with an admission, which does not amount to a confession under section 25A of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46), it should not base its conviction solely on such an admission. Instead, it should look for clear and credible corroboration of such an admission. 82. All these aspects of the evidence on record go in to corroborate the prosecution case that the 1st respondent led the Police to the scene where the RDX explosive was dug out. We thus find that, considered alone, the circumstantial evidence on record in this case nonetheless unerringly points to the respondents as the people who planted the RDX explosive at the scene where it was dug out. There is no evidence of anyone else having previously planted anything in the Mombasa Golf Course and more especially in the vicinity of Hole No 9 where the RDX explosive was discovered and which the respondents visited at least thrice, the last visit having been a day before the recovery of the RDX explosive from that spot. Had the Court of Appeal considered all these factors, we are certain it would have come to a different conclusion. 1. Having carefully re-evaluated the evidence on record, I am satisfied that the prosecution adduced cogent, credible, and sufficient evidence firmly linking the Appellant to the commission of the offence. The evidence, taken as a whole, established the Appellant's participation beyond reasonable doubt. Consequently, I am not persuaded that the trial court misdirected itself in its evaluation of the evidence or that it reached erroneous findings on either the facts or the law. There is therefore no basis for interfering with the conviction. 2. On the issue regarding the sentence, the Appellant invited this Honourable Court to be pleased to review the sentence that was imposed upon the Appellant by the trial court pursuant to Article 50(2) of the Constitution. The Respondent, however, urged this court not to disturb the sentence imposed by the trial court. The Respondent submitted that the trial court was lenient enough to sentence the appellant to serve twenty years' imprisonment only for counts one and two, and the sentence to run concurrently for counts three and four. 3. The appellant is therefore not entitled to a review of the sentence, as the twenty-year sentence is light and a slap on the wrist. The court did not warn the appellant; hence, it will not be enhancing. Otherwise the court is entitled to enhance. 4. The principles governing the circumstances under which an appellate court may interfere with a sentence were succinctly set out in the South African case of **S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001)**, where the Supreme Court of appeal of South Africa [Harms, Marais, Cameron JJA, Chetty Et Mthiyane AJJ.A] held as follows: 12. The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation. 1. Section 296(2) of the Penal Code provides for the punishment for the offence of robbery that a person who is guilty of the offence of robbery with violence is liable upon conviction to a mandatory death sentence: **(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 before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.** 1. The maximum sentence for robbery with violence is death. In the case of [**Mukenya v Republic [2025] KEHC 17161 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17161/eng%402025-11-19)**,** this court posited as follows: Having one class of capital offenders protected while another class is left to their own devices leaves the concept of ‘equal beneficiary of the law’ in limbo. The applicant urged the court that the path had been beaten before. I respectfully agree; a capital offender remains a capital offender whether or not he committed treason, murder, or robbery with violence. I therefore find that the mandatory nature of the death penalty for robbery with violence is unconstitutional. It leaves convicts without a chance to be punished depending on the degree of culpability. The applicant has stayed in custody for 27 years without ever having a chance to be executed. He also has no chance to complete his sentence. he remains in a state of perpetual fear of the unknown. This is a worse punishment than knowing your fate and facing a hangman’s noose. 31.In this state, it's essential that convicts have a chance to reform and that their sentences be reduced according to culpability. This helps to shape the heinousness of crimes. A robber, who knows that the lesser violence he metes out, the lower the sentence will be, will not have utter disregard for human life. he will mete out violence only to accomplish the robbery and not be extreme. 32.On the other hand, some sentences must be reserved for the very worst of the criminals. The death penalty, qua death penalty, is constitutional and a valid sentence to mete out. However, the applicant is concerned with the mandatory nature. The mandatory nature of the death penalty removes discretion from the court. 39. (b)The mandatory nature of the death penalty removes discretion from the court and is thus unconstitutional; 1. The trial court imposed a sentence of **20 years' imprisonment**, which, in the circumstances of this case, was notably lenient. I ndeed, had the Respondent filed a cross-appeal on sentence or had this Court given the Appellant the requisite notice of its intention to enhance the sentence, there would have been a proper basis to consider substituting the custodial term with the statutory sentence then prescribed for the offence. In the circumstances of this case, the sentence imposed was markedly lenient when viewed against the gravity of the offence, and the Appellant cannot reasonably complain that it was excessive. There is therefore no basis for interfering with the sentence. 2. The trial court considered the seriousness of the offence of robbery with violence, the appellant’s personal circumstances, the time in custody, and the need for rehabilitation of the Appellant. The trial court imposed a sentence of twenty years' imprisonment for each of counts one and two, and for counts three and four, four years' imprisonment each. The sentence was to run concurrently. 3. From the foregoing, I hereby find that the sentence imposed by the trial court is lawful. I find no plausible ground upon which to interfere with the sentence herein. With the result that the Appeal herein lacks merit and is dismissed in its entirety. 4. Before departing, I note that the court did not indicate when the sentence meted out to the appellant was to start. Section 333(2) of the Criminal Procedure Code provides as follows: **(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.** **(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.** 1. The operative words are that where the accused had been held in custody, the sentence shall take account of the period spent in custody. The appellant was arrested on 13.08.2021. He was not released on bond. He was said to be first offender and was thus not serving any other sentence. Therefore, the sentence shall commence on 13.08.2021, the date of arrest. Determination 1. In the circumstances, I make the following orders: 2. The appeal on conviction and sentence is dismissed. 3. However, the sentence meted out shall commence on 13.08.2021, the date of arrest pursuant to Section 333(2) of the Criminal Procedure Code. 4. 14 days right of appeal explained. 5. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **28th** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform **KIZITO MAGARE** **JUDGE** **In the presence of: -** Pro se the Appellant Mr. Kihara for the Respondent PC Kirima at Manyani Maximum Prison Court Assistant – Timothy