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Mutembei v Republic (Criminal Appeal E036 of 2025) [2026] KEHC 8989 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8989 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E036 of 2025 HM Nyaga, J June 18, 2026 Between Phineas Mutembei Appellant and Republic Respondent (Being an appeal from the judgment of Hon. R.Ongira — RM Nkubu Law Courts delivered on 4/6/2025 in Criminal Case NO. E005 of 2024 in Nkubu Law Courts) Judgment Background 1.The Appellant was arraigned before Nkubu Senior Resident Magistrate's court and charged with one count of the offence of robbery with violence. The particulars were that on the night of 2nd January 2024 at Tugua Village, Upper Chure Sub-Location, Chure Location within Meru County being armed with a dangerous weapon a knife robbed Mary Muthoni her cloths valued at Kshs.54,000/= and immediately after the time of such robbery, wounded the said Mary Muthoni. 2.In the 2nd count he was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. T he particulars were that on the night of 2nd day of January 2024 at Tugua village upper Chure Sub-location, Chure loation within Meru County unlawfully assaulted Erick Kinyua thereby occasioning him actual bodily harm. 3.In the 3rd count he was charged with assault c ausing actual bodily harm contrary to section 251 of the Penal Code. The particulars were that on the night of 2nd day of January 2024 at Tugua village upper Chure sub-location Chure location within Meru County unlawfully assaulted Newton Dereua thereby occasioning him actual bodily harm. 4.In the 4th count he was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars were that on the night of 2nd day of January 2024 at Tugua village upper Chure Sub-location Chure location within Meru County unlawfully assaulted Dickson Mutugi thereby occasioning him actual bodily harm. 5.The accused denied the charges. 6.After a full trial, he was convicted and sentenced to life imprisonment on the first count, 2 years imprisonment on each of the 2nd, 3rd and 4th counts. The appeal 7.Aggrieved by the said conviction and sentence, the appellant filed the petition of appeal dated 5th June 2025 in which set he out the following grounds:a.That the learned magistrate erred in both matters of the law and fact by trying and convicting the appellant relying on fatally defective charge sheet in substance which rendered the whole trial a sham; eroding the tenets of justice in a fair trial.b.The learned magistrate flouted in matters of the law and fact by demonstrating impartiality depriving the sacrosanct child of the benefit of doubt and diverted the same against the confines of law, eventually settling the case in favor of the complainant.c.That the learned magistrate erred in matters of law and fact by failing to note the prosecution failed to prove their case beyond iota of doubt as required by law to guarantee a safe conviction.d.The learned magistrate erred in law and in fact by admitting insufficient evidence tendered by the prosecution side which did not form a complete chain cumulatively pointing to the guilt of the appellant.e.That these grounds have been highlighted without the court records and since I cannot recall everything that transpired during the trial now we beg this honorable court to furnish us with the court proceedings to draft more cogent grounds during the hearing of this appeal.f.The learned magistrate erred in both matters of the law and fact by failing to take into consideration the appellant defense. 8.Directions were given that the appeal be canvassed through written submissions. Only the appellant filed his submissions. I will not rehash them herein but will refer to them in the course of this judgment. Analysis and determination 9.Being a first appeal, the Court’s duty is as was set out in Okeno v Republic (1972) EA 32 where it was held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. " 10.Similarly, in Kamau Njoroge v Republic [1987] eKLR, the Court of Appeal stated as follows:“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.” 11.With the above principles in mind, I will now examine the evidence adduced in the trial court. 12.The prosecution's case, in a nutshell is that on the material day, Muthoni Gitonga (PW 1) woke up at around midnight to check on her pregnant cow. She noticed someone unhanging clothes from her line and illuminated the suspect with her phone torch. The intruder rushed towards her and stabbed her in the chest, prompting her to scream for help. Her employees, Dickson Mutugi (PW4) and Newton Ndereba (PW2), tried to get out of their room to assist her but found their door locked from the outside. Once PW1 opened it for them, they tracked the thief to an unfinished latrine. Although the thief initially appeared to surrender, he suddenly stabbed Dickson in the shoulder and Newton in the forehead. A neighbor, Eric Kinyua (PW3), rushed to the scene after hearing the screams, pulled the attacker from the latrine, and helped subdue him. The suspect was tied up with a rope, and the area manager later arrived to help recover a combat knife, its pouch and a green sisal sack containing the stolen clothes. 13.Newton Ndereba Mutwiri (PW2), confirmed that they cornered the thief in the latrine, and he was stabbed in the forehead while subduing him. 14.Eric Kinyua (PW 3), confirmed that when he heard the screams from his house, armed himself with a panga, and jumped the fence to help, and physically pulled the thief out of the latrine. He was stabbed in the left arm during the struggle. 15.Dickson Mutugi (PW4) confirmed that he was locked in the room with PW2, and he rushed to assist once freed. He was stabbed in the shoulder/back when the latrine door opened. 16.In his defence, the appellant stated that he worked as a herd's boy for PW1 until January 2024 and was living on the property when a financial dispute arose over unpaid wages. He said that he was owed Kshs 9,000/= but was only paid Kshs 3,000/=. He vehemently denied all charges, asserting that when he went to collect his money and check on a cow at 1:00 a.m. That PW1 falsely accused him of selling her items and reduced his owed wages. Furthermore, that he was the one who was attacked with a timber post by PW1 and PW4 near the latrine, after which PW5 intervened to assist him, leading to his treatment and subsequent police involvement. 17.The offence of robbery with violence is found under section 296(2) of the Penal Code. It is set out as follows:“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." 18.The issue for determination is whether the prosecution proved its case on all the counts. 19.The first question to be answered was whether the appellant was identified. 20.The offences occurred at night. PW1 stated that she saw the thief stealing clothes from the line. On seeing her the thief confronted her and after the thief assaulted her, she raised an alarm. She had a phone torch which she shone on the thief. The people who came to her rescue pursued the thief, who ran into a latrine. When they tried to apprehend him, he attacked the other complainants. 21.In my view there is no doubt as to the identification of the appellant. He was found at the scene, having sought refuge in the latrine. He was also found with the clothes that he had removed from the hanging line, which were duly identified by PW1. 22.The next question is whether this was a robbery or as submitted by the appellant, a case of grievous harm.The appellant submitted that the trial court ought to have found him guilty of the lesser charge of grievous harm, under section 179 of the Criminal Procedure Code. 23.The evidence adduced was that the appellant attacked the complainants after he stole the clothes. If he was the one being assaulted, then where did the complainants get their injuries from? 24.In my opinion, the aftermath of the events of that day point to credibility of the evidence of the prosecution witnesses. 25.The use of violence, even after the theft, is sufficient to establish the offence of robbery with violence. Further the accused was armed with a dangerous weapon, namely a knife, which he used to attack the complainants. 26.Having looked at the evidence adduced, I am in concurrence with the trial court that the ingredients of the offence of robbery with violence were clearly established and that prosecution proved its case to the required standard. 27.The appellant’s defence was duly considered by the trial court and found that it did not rebut the evidence adduced by the prosecution. 28.I have looked at the same. The accused denied that he committed the robbery. He claims that he was employed by the complainant, which was denied. His evidence on how he was arrested and allegedly beaten does not explain how the complainants sustained injuries, caused by a sharp object. The injuries are consistent with the prosecution case. 29.On the other counts the evidence is also very compelling. The appellant was the one who assaulted the other complainants when they attempted to apprehend him. 30.In conclusion I uphold the conviction on all the counts. 31.The sentence for the first count is the death penalty. The trial court meted out a life sentence instead. 32.There is settled law in Francis Karioko Muruatetu and Another vs Republic (2021) eKLR that the principles set out in Francis Francis Karioko Muruatetu and Another vs Republic (2017) eKLR did not apply to any other offence other than murder. The Supreme Court reiterated this position in Goddrick Simiyu Wanga vs Republic [2024] KESC 38 (KLR) when it held as follows;“In terms of Article 163(7) of the Constitution, we expect all Superior and Subordinate Courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu Directions, where we elucidated in the passage below what was intended to be the ratio decidendi in the Muruatetu Case:“In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.” [Our Emphasis]We say no more, save to recapitulate that our decision in the Muruatetu Case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the Muruatetu Case applies only with respect to the mandatory nature of the death sentence under Sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.” 33.As matters stand now, the only penalty that can be imposed in a robbery with violence case is the death penalty. Therefore, the trial court fell into error in imposing an alternative sentence. 34.That said, I note that the DPP did not give a notice of enhancement of sentence. It would thus be highly prejudicial to impose the higher sentence. 35.For the foregoing reasons, I will not disturb the sentence. 36.As for the other offences I find that the sentences were lawful and I uphold them. 37.In conclusion, I find no merit in the appeal and it is dismissed in its entirety. DATED, SIGNED & DELIVERED AT MERU THIS 18TH DAY OF JUNE 2026.H. M. NYAGAJUDGE.