https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/379

Republic v Obwogo & 4 others (Criminal Case E466 of 2024) [2026] KEMC 379 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEMC 379 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E466 of 2024 AK Njeru, SRM July 8, 2026 Between Republic Prosecution and Simon Obwogo 1st Accused Ernest Wandera Sanya 2nd Accused Clinton Juma Oduor 3rd Accused Samuel Olima Wandera 4th Accused Davis Javan Wafula 5th Accused Judgment 1.Accused parsons have been charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. Particulars are that on the 7th day of December 2024 at Buyingi village, Luanda sublocation Namboboto location, Samia subcounty within Busia County, jointly with others not before court, the accused persons robbed Clinton Barasa a mobile phone make techno valued at Kshs 2,000, a hat valued at Kshs 200 and shoes worth Kshs 250/= and immediately after such time of robbery wounded the said Clinton Barasa. 2.Each of the accused persons denied the charge and the prosecution presented its evidence as follows: Prosecution’s evidence 3.PW1 Festus Naderia, a bodaboda rider stated that on the 7/12/2024 at around 6.30am he was called into complainant’s home where he found complainant surrounded by his parents and other people and with two cut wounds at the back of his head bleeding profusely. He rode complainant to the hospital in Funyula where complainant was treated and he then escorted complainant to the police station where a report was made. He then rode complainant back to the hospital for filling of the P3 Form issue and rode him back again to the police station. complainant informed him that it was Obwogo and 4 others who had inflicted the injuries upon him while he was on his way from a night vigil. 4.PW2 Norbert Barasa, complainant’s father, testified that on 7/12/24 at around 6.00am he was woken up by the complainant and saw cut wounds on the complainant’s head from which he was bleeding profusely. Complainant’s left thigh and face were swollen. Complainant informed him that he was attacked on his way home from a night vigil in the neighboring village at around 1.00am, near a bridge that separates their villages by around 20people. He tried to run away from the gang but they caught up with him, pushed him to the swamp, one of them cut him with a panga on his left side of the head and the thigh while another hit him with a metal bar on his left jaw. Complainant stated that he was able to positively identify 6 of his attackers namely Samuel, Clinton Juma, Ernest, Davie and Obwogo CJ who he had assigned several casual labor work severally at his homestead. He called Clinton and enquired why he had attacked his son but Clinton responded that it was he who saved complainant after the crowd tried to kill him. That he was nearby when he heard screams and went to find the complainant being attacked. He instructed PW1 to escort his son to the hospital and the police station to report the matter. complainant reported being robbed off his phone, hat and shoes during the attack. He knew all the accused persons by names and even identified them all in court. 5.PW3 Barasa Clinton Donsis, the complainant herein stated to have been heading home from a night vigil around half past midnight on the night of 7/12/24 when he was attacked midway by a group of men who had torches illuminating the area. the gang was armed with rungus and pangas which he could see from the light coming from their torches. He heard them say they would grab him and ran but they caught up with him. They beat him up and inflicted cut wounds on his left cheek, behind the left ear, on his head and on his left leg. From the light from the torches, he was able to recognize some of his attackers. They were David (pointing at 5th accused) who beat him up, they removed his shoes, hat and took away his mobile phone. 4th accused (referred to him as Sammy), pleaded with the gang to stop beating him saying that he knew complainant. 1st accused well known to him as Obwogo CJ is the one who hit him with a metal rod on his jaw, 3rd accused (referred to him as Clinton) told the group that he was Atito and ordered them to give him back his phone while the 4th accused asked them why they were giving me back my phone. other group members who were not in court requested him to give his father’s phone contacts so that they call him and ask him to escort him to the hospital for treatment. 2nd accused, his neighbor, is the who escorted him home. He informed his father of the incident, his father made arrangements and PW1 escorted him to the Nassi hospital in Funyula where he was treated and at the police station where the incident was reported. He was later issued with a P3 Form which was filled at Sio Port Hospital. He produced the treatment notes from Sio Port Hospital as Pex no. 1. He lost his phone, cap and crocks(shoes) from his attack. The Techno button phone was later recovered from the 5th accused. He identified them all from the bright light from their torches and knew them all for over 7 years. Nassi hospital noted the injuries of cut wound on his face, around zygomatic bone but did not indicate the injury on the left lower limb. He bought the cap and shoes from a second-hand shop hence had no evidence of purchase.2nd accused escorted him home, 3rd accused asked the group to stop attacking him, 4th accused cut him on his face using a slasher and 5th accused cut him on his face. 6.PW4 Kenneth Iluku a clinical officer working at Sio Port Hospital testified that he examined the complainant on 7/12/24 at around noon. He presented a history of being attacked by 6 people well known to him and complained of bilateral jaw pains scalp wound, headache, pains on his left leg and dizziness. Complainant gave a history of being attacked by people wielding pangas and knives through kicks, blows and being pushed to the ground on his way from a night vigil around 1.00am that morning. he was first treated at Nassi Hospital where the cut wounds had been stitched, dressing done and tetanus injection given. On examination, complainant had changed his clothing, had dizziness, left sided facial wound approximately 3cm with stitches on, swelling and tenderness on the left side of the face, had pains on his mouth, jaws and cheeks, upper lip had a cut wound approximately 1.5cm long, wounds on the mouth bilateral jaw tenderness hence unable to open the mouth freely. On the left temporal region, thee was a wound approximately 2.5cm long, left elbow joint was painful, tender left upper limb, tenderness and swelling on the left lower limb at the joint regions, tenderness on the left hind thigh as well. he made an estimated age of injury as approximately 11hours with the nature of weapon being sharp and blunt objects. He classified the degree of injury as harm. He filled the treatment notes and the P3 Form which he produced as Pex no. 2 and 3 respectively. The upper lip cut wound was not noted in the initial treatment notes from Nassi Hospital as well as the left lower limb tenderness. 7.PW5 110707 PC Binti Rashid the investigating officer stated that a report of this incident was made by the complainant at Funyula Police station on the 7/12/2024 at around 10.40am. complainant reported having been assaulted by a group of armed people while heading home that morning at half past midnight from a night vigil. He stated that the group of his attackers were armed with knives, pangas, rungus, jembes and sticks. They assaulted him result of which he sustained injuries and also stole his techno button phone, his cap and his shoes. He positively identified some of his attackers and named them as Sammy, David, Obwogo, Lucky, Ernest and Pascal. That one Sammy recognized their victim and told his fellow accomplices to stop the assault. That Ernest is the one who escorted complainant home. He had received treatment at Nassi Hospital. She issued complainant with a P3 Form which was filled at Sio Port Hospital and further treatment notes recorded. She recorded the witness statements and suspects were arrested. At the time of arrest, items recovered at 1st accused’s house were a big stick, one knife, a screw driver, sword, a whip and a small material of jungle uniform of the police. In David’s house, they recovered the Itel Button phone which he refused to unlock. She produced the knife with a black handle s Pex no. 4, the sword as Pex no. 5, whip as Pex no. 6, combat police cloth as Pex no. 7, black itel phone as Pex no. 8. complainant did not provide proof of ownership of purchase of the stolen phone nor the stolen items. She found 3rd accused at the police station and arrested him after complainant named him as one of his assailants. Complaint recorded losing a techno button phone not the Itel one. the phone she recovered was Itel make with a Tecno battery. 8.At the close of the prosecution's case, each accused was found with a case to answer and placed on their defence. Their evidence was as follows: Defence evidence 9.DW1 Simon Obwogo Wafula stated to understand the charges he faced and admitted knowing the complainant prior to this case. That on 6/12/2024 he attended a night vigil around 8.00pm and helped digging the grave where the body of his late aunt would be laid the following morning. While digging, they heard screams on the road side and people came to the vigil informing them that they had been attacked on their way home by a group of people while other reported losing their phone and sustaining injuries on their fingers from attack by a similar group. That he wasn’t part of the attackers neither did he commit the offence charged. He was at the vigil in the company of Bonface Bwire, his brother Davis (5th accused) where they dug the grave till midnight. Zephania joined them and they remained there till morning. Clinton is well known to him. he does not know why he was framed for this offence yet they bear no grudge against each other. 10.DW2 Ernest Wandera Sanya testified on oath that on 6/12/2024 he met 1st and 4th accused at a night vigil where they stayed and he left at around midnight and headed home. On his way, he heard screams and drew closer to find the complainant “Atito” who is his neighbor who informed him that he had been assaulted. He escorted the complainant to his home then headed to his. He later was arrested and met 1st, 4th and 5th accused persons in police custody. He had no grudge with the complainant and did not understand why they framed him for this offence. 11.DW3 Clinton Juma Oduor stated that on 6/12/2024 he was a night vigil of his grandfather where he stayed until midnight. He heard screams at the roadside and rushed there to find complainant injured. Complainant was bleeding from his head profusely. He tried calling complainant’s father through his mobile phone but the call was not going through. He then heard another scream and headed to check to find his brother Evans Juma bleeding from a cut wound on his head. Complainant’s father called him back and that is when he informed him that he was the one who had rescued his son from his attackers. he was later arrested. he did not commit the offence charged. He found complainant in a ditch and also found 1st and 5th accused at the scene with pangas standing over the complainant and called them out by their names. 1st and 5th accused had blood stained pangas and complainant informed him that they wanted to kill him. He was not part of the group that attacked the complainant rather, he rescued the complainant as he rightfully testified in his testimony. 12.DW4 Samuel Olima Wandera testified on oath that on 6/12/2024 he attended a night vigil and, on his way, he found a group of people, some wearing masks, with torches shining light on him. One Larry approached him and identified himself. The group wanted to rob him of his phone but he managed to get to the vigil. He then found 1st and 5th accused digging the grave and informed them of the incident. people at the vigil reported being attacked by a group of men along the way. One Zephania came to the vigil with his fingers injured and claimed the same. 2nd accused also came to the vigil and later left. The following day, he was arrested. He knew complainant and his family well. He did not commit the offence herein. 13.DW5 Davies Javan Wafula testified that on 6/12/2024 he was at a night vigil where his uncle had died. As they dug the grave, mourners kept reporting being attacked along the road by a group of people. He stayed at the graveside till morning. police later that morning came and arrested him. He was not found with any of the stolen items nor weapons and did not commit the offence as charged. He had no grudge with the complainant and did not understand why he had been framed for this offence. 14.DW6 Ian Derrick Ochieno testified on oath as 2nd accused’s witness who was his neighbor. That on 7/12/2024, he was at home attending the burial of their late grandfather and had attended a vigil in the company of Olima Samuel Javan Davis, Obwogo and Ernest. He stated to have been there from 8.00pm as Javan and Davis dug the grave and were later joined by Samuel. Samuel informed them that there was a group of people attacking others on the roadside and this was the same information told to them by Ernest who arrived at the vigil around 9.00pm. around midnight, Ernest returned home. He knew complainant herein as their neighbor but not one Peter Ouma nor his father. he did not see Clinton Juma in the vigil. He left the vigil in the morning at around 8.00am. He cant tell if Ernest was part of the attackers of Clinton Barasa or Peter Ouma. 15.DW7 Benard John Mugobi testified as witness to both Samuel and Davis. That on 7/12/204, they attended a night vigil and David, Samuel and Simon, dug the grave and began the digging around 9.00pm till around half past 11pm. They heard noises outside the vigil home and people reported a fight between the people of Buyingi and those from Luchululo villages. Around midnight the accused persons left while he remained at the vigil till morning. he does not know where they went to. complainant is well known to him he did not witness the incident. He does not know whether the accused persons were involved. 16.DW8 Zephania Wandera 1st accused’s witness stated that on the material night they were at a night vigil. He stated that he did not know complainant herein Clinton Brasa nor did he know Peter Ouma. That on his way to the vigil he came across a group of men who robbed him of his mobile phone and inflicted a cut on his hand. When he arrived at the vigil, he found Samuel, Ernest, Davies and Obwogo digging the grave. Those in attendance of the vigil were complaining of being attacked by a group along the road. He left the vigil in the morning. the following morning, he reported the matter at the police station vide OB no. 18/10/12/2024. He remained at the vigil till morning with Samuel, Davis and Obwogo but Ernest had left. 17.The prosecution did not offer any submissions at the close of their case while accused persons all did. Accused persons’ submissions 18.1st accused submitted that the prosecution failed to establish proper identification of him in their evidence. That PW2 reported the complainant being attacked by 20 people and him being excluded, while the investigating officer stated that the complainant was only able to identify 3 of his attackers; he excluded that this was contradictory. That further, evidence of identification was not proper as the incident occurred at night and hence the evidence of a single witness was insufficient in the circumstances to justify a conviction That the evidence of the complainant that he struck him on his jaw with a metal rod while in his testimony he stated 1st accused had a panga on him was equally contradictory. That none of the stolen items or weapons were recovered in his possession at the time of his arrest That the 3rd accused was clearly stated to have rescued the complainant yet the investigating officer named him as an attacker hence improper investigation. he prayed for an acquittal based on the evidence of the alibi defence by his witnesses. 19.2nd accused in his submissions submitted in summary that the prosecution failed to link him to commission of the crime since he is the one who escorted the complainant home hence contradicting the narrative that he was part of group that attacked the complainant. That further no weapon nor stolen item was recovered from is possession. That the evidence relied upon by the prosecution is circumstantial and hence insufficient to sustain a conviction against him. That That the evidence of injuries sustained was contradictory hence going to the root of the prosecutions case. He prayed that the same be construed in his favour. That the incident occurred at night and there was no sufficient evidence to prove the issue of recognition of him as part of the attackers. That the prosecution failed to prove any of the things stolen from the complainant as none were recovered, the phone produced did also not match the description of that which was stolen. That the evidence of the defence remained unchallenged by the prosecution witness. He prayed for an acquittal of the charges. 20.3rd accused in his submissions stated that the prosecution failed to prove its case against him beyond reasonable doubt. This is because they were unable to prove he participated in injuring the complainant nor robbing him but instead, the evidence presented was that he rescued the complainant from the attackers. That no weapon was recovered in his possession neither were any of the stolen items. He prayed for an acquittal. 21.4th accused in his submissions reiterated the submissions of the 1st accused and so did the 5th accused. Analysis and determination 22.Section 296 (2) of the Penal Code provides that:(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. 23.For the prosecution to secure a conviction under Section 296(2), it must prove, in addition to the elements of theft with violence under Sections 295 and 296(1), that one or more of the aggravating factors set out above existed —that the offender(s) were armed, acted in company of others, or used violence on the victim. Where, as here, the charge is laid against several accused acting jointly with others not before court, the prosecution must additionally prove, beyond reasonable doubt and as against each individual accused, that he participated in the offence either as a principal offender or as a person who, in furtherance of a common intention to prosecute an unlawful purpose, was present and assisted in the commission of the offence. Guilt is personal and must be established against each accused separately; the case against one accused cannot be used to convict another absent evidence specifically implicating that other. 24.Accused persons have raised in their submissions several factors which I have taken into consideration. 25.First is that the incident occurred at night. It was incumbent upon the prosecution to prove that identification was proper and without any possibility of an error. Only the complainant saw his attackers. Was his evidence in identification watertight? It is trite law, settled in a long line of authorities, that where a conviction rests wholly or substantially on evidence of identification or recognition, the court must examine that evidence with great care and satisfy itself that the circumstances of identification were favourable and free from the possibility of error before convicting on it: see the cases of Abdalla Bin Wendo v R (1953) 20 EACA 166; Roria v Republic (1967) EA 583; Wamunga v Republic (1989) KLR 424.Where the identification was made by recognition of a person already known to the witness, that evidence may be more reliable than identification of a total stranger, but the court must still be alive to the fact that mistakes in recognition of even close acquaintances do occur: see the cases of R v Turnbull [1976] 3 All ER 549; Wamunga v Republic (supra).Identification or recognition made at night is subjected to an even higher threshold; it must be “absolutely watertight” before it can sustain a conviction: see the case of Nzaro v Republic (1991) KAR 212; Kiarie v Republic (1984) KLR 739. Relevant factors include the length of time the witness had the assailant under observation, the distance between them, the quality and source of light available, whether the witness had any obstruction to his view, whether he knew the assailant before and, if so, how well and for how long, and whether the witness gave a description of the assailant to the police at the earliest opportunity that is consistent with the actual appearance of the accused. 26.Accused persons have also raised the aspect of contradictions in naming of the assailants by the complainant as well as the injuries sustained by the complainant. The position in law is that not every contradiction is fatal to the prosecution's case. Grave contradictions, unless satisfactorily explained, will usually, but not necessarily, lead to rejection of the evidence; minor contradictions which do not go to the root of the matter, and which do not point to deliberate untruthfulness, may be disregarded, since human recollection is never perfect: See the case of Erick Onyango Ondeng v Republic [2014] eKLR; Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001 (UGCA, 2003); Philip Nzaka Watu v Republic [2016] eKLR. The duty of this court is to weigh the nature, materiality and cumulative effect of any contradictions against the entirety of the evidence and decide whether they merely reflect the imperfection of human memory or whether they go to the very substance of the prosecution case so as to raise reasonable doubt. 27.Another issue raised by the accused persons is that no weapon allegedly used or the stolen items were recovered from any of them therefore exonerating them from the commission of the offence. in the instant case, I agree with the accused persons that none of the items produced by the investigating officer matched the description of those items stated to have been stolen from the complainant. Does this then mean that the accused persons are innocent of the crime charged? 28.It is common ground, and I so find, that on the night of 6th/7th December 2024, the complainant Clinton Barasa was violently attacked at approximately 1.00 a.m. by a group of assailants, variously estimated at between five and twenty in number, as he made his way home from a night vigil through Buyingi village. The attack is corroborated by the evidence of PW1 (Festus Naderia), PW2 (Norbert Barasa, the complainant's father), the medical evidence of PW4 (Kenneth Iluku, clinical officer) supported by the treatment notes and P3 Form (Pex 2 and 3), and is not seriously disputed by any of the accused, several of whom acknowledge that an attack of this nature occurred that night in the vicinity of the vigil they were attending. I am satisfied beyond reasonable doubt that the complainant was robbed of his Tecno mobile phone, a hat and a pair of shoes, and that he was violently assaulted with both sharp and blunt objects namely pangas, rungus and similar weapons by more than one assailant acting in concert. The ingredients of robbery with violence under Section 296(2), namely theft accompanied by violence inflicted by persons acting in the company of one another and armed with offensive weapons, have therefore been established as against whoever participated in the attack. 29.The live issue in this trial, as correctly identified by each of the accused in their respective submissions, is not whether the offence occurred, but whether the prosecution has proved beyond reasonable doubt that each of the five accused now before court was one of the persons who participated in it. This calls for individualised scrutiny of the evidence against each accused, since an attack carried out by a large, partly unidentified group does not permit guilt to be attributed collectively without specific, reliable evidence linking each particular accused to the commission of the offence. 30.I note at the outset two significant difficulties that pervade the prosecution's case as a whole. First, there are material inconsistencies in the number and identity of persons said to have been positively recognised by the complainant. PW2 testified that the complainant named six attackers namely Samuel, Clinton Juma, Ernest, Davie, Obwogo CJ and a sixth not clearly named in circumstances where the attacking group numbered as many as twenty. PW3, the complainant himself, gave an account in which the role attributed to each named individual shifted within his own testimony: He described the 4th accused (Samuel) as the one who pleaded with the gang to stop the assault and, in the same breath the one who cut him on the face with a slasher; he described the 3rd accused (Clinton Juma) as a person who ordered the gang to return the phone and, elsewhere, as a person who asked them to stop attacking him. PW5, the investigating officer, recorded a different combination of names altogether being: Sammy, David, Obwogo, Lucky, Ernest and Pascal two of whom (Lucky and Pascal) do not correspond to any of the accused before court and were never explained. These are not trivial discrepancies of the kind that arise from ordinary imperfection of human recollection; they go to the very identity of the persons who are said to have committed specific acts of violence and theft, which is the central issue in this case. I have therefore approached the question of recognition with considerable caution, mindful that the higher threshold demanded of night-time recognition evidence has not been displaced merely by the fact that the complainant knew the accused beforehand. 31.Second, the recovery evidence is itself confused. PW5 testified that the complainant reported the loss of a Tecno button phone, yet the phone recovered and produced as an exhibit was an Itel handset fitted with a Tecno battery, recovered not from the 5th accused as PW3 stated in his evidence, but, according to PW5, from the house of “David”. No evidence of ownership, such as a purchase receipt, an IMEI record, or even a SIM card or call log linking the recovered handset to the complainant, was produced. The doctrine of recent possession cannot avail the prosecution in respect of this item because the very first basic fact the doctrine requires which is that the item recovered is positively shown to be the complainant's stolen property, has not been established; an Itel phone with a Tecno battery is not shown, on the evidence, to be the same item as the Tecno button phone the complainant says was stolen from him. Similarly, none of the other items recovered from the 1st accused's house (a stick, a knife, a screwdriver, a sword, a whip and a piece of police-style uniform) were identified by the complainant as among the items stolen from him during this robbery; at best, that recovery may raise suspicion as to other, unrelated conduct, but it cannot found an inference of guilt in respect of the robbery charged. Case Against Each Accused 1st Accused – Simon Obwogo Wafula (“Obwogo CJ”) 32.The complainant testified that he had known the 1st accused for over seven years and identified him as “Obwogo CJ”, a person well known to him, whom he says struck him with a metal rod on the jaw. PW2 similarly named Obwogo CJ among the six attackers the complainant says he was able to identify. However, the 1st accused's own witness, DW3 (Clinton Juma, the 3rd accused), testified that on arriving at the scene he found the 1st and 5th accused standing over the complainant with blood-stained pangas, which DW3 says he understood, on the complainant's own utterance to him, to be persons who wished to harm the complainant rather than persons who had rescued him. 33.This places the 1st accused squarely at the scene, armed with a panga, in circumstances consistent with participation in the attack rather than mere happenstance presence. Against this, the 1st accused raised an alibi, supported by DW4, DW6, and DW8, that he spent the material night at a vigil digging a grave in the company of others. I have weighed this alibi against the direct, recognition-based evidence of the complainant, who knew the 1st accused well and for a long period, against the corroborating account of his own co-accused's witness (DW3) placing him at the scene armed with a panga stained with blood, and against the fact that weapons namely a knife, a sword and a whip were recovered from his house on arrest, which, while not identified as the stolen items, are at least consistent with a person who had recently been in physical conflict involving weapons. 34.An alibi does not have to be disproved by the prosecution calling rebuttal evidence where the prosecution's own evidence, and that of a co-accused's witness, places the accused squarely at the scene of the crime in a manner inconsistent with the alibi. Moreover, DW7 testified that 1st accused, 4th accused and 5th accused persons left the vigil at midnight. This displaces the evidence of the defence witnesses that they stayed at the vigil till morning. 35.I find that the 1st accused's alibi has been displaced by cogent, mutually corroborating evidence of presence and active participation, and I am satisfied beyond reasonable doubt that the prosecution has proved that the 1st accused was one of the persons who participated in the violent robbery of the complainant. 2nd Accused – Ernest Wandera Sanya 36.The evidence against the 2nd accused is markedly different in character from that against the 1st accused. PW3, the complainant himself, testified that the 2nd accused, his neighbour, was the person who escorted him home after the attack. PW5, the investigating officer, likewise testified that it was Ernest who escorted the complainant home. This account is consistent with, and corroborated by, the 2nd accused's own testimony (DW2) that he was at the vigil, left around midnight, heard screams on his way home, found the complainant injured, and escorted him home before proceeding to his own house. Though no prosecution witness attributed any act of violence or theft to the 2nd accused, PW2's evidence, that the complainant named six attackers including an “Ernest”, is sufficient evidence tending to implicate him. In any event, 2nd accused’s evidence that he found complainant injured is uncorroborated by the complainant himself who stated that 2nd accused took him home. Complainant did not inform the court that 2nd accused found him injured after the fact. Only that he took him home. It is my considered view that just because he escorted accused and ‘played’ rescuer does not take away the fact that he was among the group that attacked the complainant. Unlike the 3rd accused, who was very categorical that he found the 1st and 3rd accused with pangas beside the complainant, the 2nd accused did not testify as to where he found the complainant injured or with whom to justify his rescue act. I find that the prosecution has proved beyond reasonable doubt that the 2nd accused participated in the robbery as an accomplice. 3rd Accused – Clinton Juma Oduor 37.The case against the 3rd accused suffers from an internal contradiction in the prosecution's own evidence that I find impossible to ignore. PW3, the complainant, testified that the 3rd accused identified himself to the gang as “Atito” and ordered them to return the complainant's phone. In other words, that he intervened on the complainant's behalf. PW5, the investigating officer, gave a materially different account: that the complainant named Sammy, David, Obwogo, Lucky, Ernest and Pascal as his attackers, a list that does not include the 3rd accused by either name, and that she arrested the 3rd accused only after finding him at the police station and after the complainant, separately, named him as one of the assailants. The 3rd accused's own evidence (DW3), corroborated materially by the account given by DW4 (Samuel, the 4th accused) of finding the 1st and 5th accused digging the grave and reporting the incident to them, was that he in fact rescued the complainant after hearing screams, found him bleeding in a ditch, and that it was the 1st and 5th accused whom he found standing over the complainant armed with blood-stained pangas. 3rd accused was also not named as one of those at the vigil. This coincides with his evidence that he merely heard screams and went to rescue the complainant. 38.I find the prosecution's case against the 3rd accused to be self-contradictory at its core: the complainant's own account casts him in the role of a rescuer who intervened to stop the theft and assault, not as a participant in it, and no prosecution witness gives a coherent, consistent account of any act of violence or theft committed by him. No weapon or stolen item was recovered from him. Where the prosecution's principal witness describes conduct by an accused that is exculpatory rather than incriminating, and where no other witness gives a clear, consistent account to the contrary, the benefit of that doubt must go to the accused. I find that the prosecution has not proved beyond reasonable doubt that the 3rd accused participated in the robbery. 4th Accused – Samuel Olima Wandera 39.The complainant's evidence regarding the 4th accused (whom he referred to as “Sammy”) shows that he was at the scene of the crime contrary to his alibi evidence. In any event, DW7 testified that 4th accused left in the company of 1st and 5th accused among his other friends at midnight contrary to the evidence of DW8 who testified that he stayed with them in the vigil till morning. I further find the testimony of DW8 suspect as his evidence that he was also injured by the group. There is no reasonable explanation why if indeed he sustained the injuries thus stated from the attack, he waited 3 more days to report the incident as shown from his OB number (10/12/2024) while the accused persons were already in custody. More likely than not, he seems to have been the 4th accused person’s accomplice. 40.The 4th accused's own evidence (DW4), that he encountered a separate group of robbers on his own way to the vigil who attempted to rob him of his phone, that he reported this to the 1st and 5th accused at the vigil, was displaced by complainant’s evidence that accused was among the assailants and even informed the rest of the accomplices that he knew the complainant well. 5th Accused – Davies Javan Wafula 41.The complainant testified clearly and specifically that the 5th accused, David, was the person who beat him, removed his shoes, his hat and his mobile phone, and who, together with the 4th accused, cut him on the face. This account of direct participation in both the violence and the theft is the most specific and detailed attribution of culpable conduct made against any of the accused in this case. It is materially corroborated by DW3 (the 3rd accused), who, notwithstanding that his evidence was otherwise exculpatory of himself, testified that on arriving at the scene he found the 1st and 5th accused standing over the complainant armed with blood-stained pangas 42.The 5th accused's alibi, that he spent the entire night digging a grave at the vigil and was not part of any attack, is supported by several of his co-accused's witnesses. However, as with the 1st accused, this alibi must be weighed against direct recognition evidence from a complainant who had known the 5th accused for over seven years, gave a clear, consistent and specific account of his role at every stage of his testimony (in contrast to the shifting accounts given of the 1st and 4th accused), and whose account is independently corroborated by a co-accused's own witness placing the 5th accused at the scene of the attack armed with a panga. I find that the consistency and specificity of the identification evidence against the 5th accused, taken together with this corroboration, meets the heightened threshold demanded of recognition evidence obtained at night, and displaces his alibi defence. Further, DW7 names him among those who left the vigil at midnight most likely placing him at the scene against his evidence that he stayed in the vigil till morning. 43.I am satisfied beyond reasonable doubt that the prosecution has proved that the 5th accused was one of the persons who participated in the violent robbery of the complainant. 44.In consideration of the evidence in its totality, it is clear the evidence of recognition and identification by the complainant of his attackers namely the 1st, 2nd 4th and 5th accused persons among other not before court was watertight. He knew the accused persons prior to the incident. He named them to PW2, PW5 and the investigating officer as his attackers. He positively identified them from the torches they had and from his own evidence, the torches were bright enough to positively identify them as his attackers among the many other. The issue of identification raising a probability of mistaken identity in this case in my considered view, does therefore not arise. In any event, none of these accused persons had a grudge with the complainant from their own testimony. There was therefore no reason why the complainant would want to frame them for this offence. 45.On the issue of contradiction raised above by the accused persons in their submissions, I find the same very minor. all the prosecution witnesses confirm that complainant suffered cut wounds on his head. Even though the rest may have been missed out, this was the major injury which has been supported by medical evidence which remained uncontroverted by any other evidence by the defence. 46.Having carefully re-evaluated the entirety of the evidence on record, I make the following findings:(a)The offence of robbery with violence contrary to Section 296(2) of the Penal Code was committed against the complainant, Clinton Barasa, on the night of 6th/7th December 2024 at Buyingi village, as charged.(b)The prosecution has proved beyond reasonable doubt that the 1st, 2nd 4th and 5th accused persons participated in the commission of that offence.(c)The prosecution has failed to prove beyond reasonable doubt that the 3rd accused, Clinton Juma Oduor, participated in the commission of that offence. The evidence against each of them is materially inconsistent and more consistent with the role of a person who intervened to assist the complainant rather than with that of participants in his attack. Disposition(i)The 1st accused, Simon Obwogo Wafula, the 2nd accused, Ernest Wandera Sanya , 4th accused, Samuel Olima Wandera and 5th accused, Davies Javan Wafula, are all found guilty of the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code and is hereby convicted of the same pursuant to section 215 of the Criminal Procedure Code.(ii)and 3rd accused, Clinton Juma Oduor, is hereby found not guilty and is hereby acquitted under Section 215 of the Criminal Procedure Code. They are set at liberty forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 8TH DAY OF JULY 2026.HON. ANNE NJERUSENIOR RESIDENT MAGISTRATE