Republic v Obwogo & 4 others (Criminal Case E467 of 2024) [2026] KEMC 376 (KLR) (8 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E467 OF 2024** **REPUBLIC VERSUS SIMON OBWOGO, ERNEST WANDERA SANYA, CLINTON JUMA ODUOR, SAMUEL OLIMA WANDERA AND DAVIS JAVAN WAFULA** **JUDGMENT** 1. Accused persons have been charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. Particulars of the offence are that on the 7th day of December 2024 at Buyingi village, Luanda Sublocation Namboboto location Samia Sub County within Busia County, accused persons jointly with others not before court robbed Peter Ouma a jacket valued at Kshs 500, leather shoes worth Kshs 2,500 and Kshs 1,000 and immediately after the time of such robbery wounded the said Peter Ouma. 2. Each accused denied the charge and the prosecution presented its evidence as follows: 3. PW1 Fredrick Apeli testified that on 7th December 2024 he woke up to find his nephew with one cut wound on his forehead, three cut wounds at the back and middle of the head. He took him to the hospital and later to Funyula Police station where he was issued with a P3 Form which was filled at Sio Port Hospital. He reported being assaulted and injured by Obwogo CJ, Ernest, Sammy and Davies while on his way from a burial at around 1.00am that morning. That Ernest was the first one to attack him while CJ and Davies had pangas which they used to inflict the cut wounds on him. He reported being robbed of Kshs 1,000 and a jumper and shoes. That Ernest held him to the ground as 1st and 5th accused cut him with the pangas they had. He knew them all accused persons as they were his neighbors while 4th and 5th accused were his relatives. Peter did not mention 3rd accused’s name as those among his attackers. 4. PW2 Peter Ouma testified that on 7/12/2024 he was coming from a night vigil which he had attended the previous day at around 10.00pm in the commonly of one Atito. That on his way, he met a group of around 20 people with torches on who told each other “mshike huyo”. That he decided to run back to the vigil but 2nd accused ran caught him and over powered him. 5th accused cut him with a slasher on his forehead while the rest began beating him up. He screamed for help but no one heard him. 2nd accused told his accomplices that he was a Ugandan so they ought not to kill him. 1st accused then hit him with a metal rod on his jaw as the rest robbed him of hs jumper and shoes which they removed from his body. he sustained 4 cuts being one on his forehead, and 3 on his head. The jumper had Kshs 1000/= inside the pocket. They walked him towards his home as 4th accused asked him if he find someone to take him to the hospital as other suggested, they instead kill him. as he ran off, he heard someone else screaming for help. He got home and narrated to his Cousin Elisha what had transpired. He was bleeding profusely. his uncle woke up and escorted him to the hospital where he was treated. The matter was reported at Funyula Police station and P3Form issued. Treatment notes were also filled. he could positively identify his attackers from the bright light coming from their torches and from the moonlight. He recognized them all since he knew them well as they hail from the same center and are his village mates. Accused persons had pangas, rungus, jembes and slashers. He did not see 3rd accused among the accused persons. He knew 1st accused by his alias CJ. 2nd accused is the one who caught him as he tried to run. He did not try to save him. instead, he grabbed on him as the rest descended on him with beatings. 5. PW3 Daniel Muruka Omuse a clinical officer working at Sio Port Hospital stated to have examined the complainant on 7/12/2024 at around 2.00pm who came to the facility with multiple cut wounds and with a history of being assaulted by a group of individuals, 3 of them known to him that night at around 2.00am on his way from a night vigil. On examination, the victim had multiple cut wounds on his head, chest, soft tissue injuries on his upper limb and left shoulder. He reported bleeding massively from the cut wounds. He was in pain and was in a green shirt and black trouser, all soiled with blood and torn. He had 4 scalp wounds actively bleeding with a swollen upper lip, left occipital edema, multiple cut wounds on his posterior chest actively bleeding. He stitched the cut wounds, gave anti biotics and pain killers and administered tetanus injection. He filled the P3 Form and assessed the degree of injury as harm. He produced the treatment notes and the P3 Form as Pex no. 1 and 2 respectively. the probable type of the weapon used was a sharp object. 6. PW4 110707 PC Binti Rashid testified as the investigating officer in the matter. That on 7/12/24 vide ob NO. 16, a report was made by the complainant who reported being attacked and robbed at around 2.00am that morning by a group of men armed with weapons on his way from a night vigil. He reported being robbed of Kshs 1,000, his shoes and his jacket. He identified his attackers as Ernest, Sammy and David. He was escorted to the hospital and treated at Sio Port Sub County Hospital where treatment notes and P3 form was filled. he recorded the statements of the witnesses and arrested 5 suspects. From 1st accused’s house, they recovered a knife (Pex no. 3 ), a large stick, screw driver, a sword(Pex no. 4), a whip(Pex no. 5), jungle green material which looked like a police uniform(Pex no. 6) and a mobile phone from David’s House, make Itel (Pex no. 7). Complainant did not name 1st accused but reported knowing him physically hence his arrest. Complainant later identified 1st accused at the police station. None of the stolen items were recovered from him. 2nd accused was named by the complainant as one of his assailants. They were not lumped up in this case just because they were the same suspects in the Port Victoria Criminal Case no. 466 of 2024. It is not true that complainant’s father supplied the police with a rim of paper hence influencing their charges. complainant did not provide evidence of ownership of the stolen items. 7. At the close of the prosecution’s case, accused persons were each found with a case to answer and placed on their defence. Their defence was as follows: 8. DW1 Simon Obwogo Wafula testified that on 7/12/2024 he was sleeping when police came to his house and arrested him in connection with the two cases. Peter did not mention him as one of his assailants. That he had seen complainant in 2023 grazing cattle on their land. he did not understand why he was framed for this offence which he did not commit. 9. DW2 Ernest Wandera Sanya testified that complainant herein is his neighbor. That he did not commit their offence but was only bundled up in this case as he was a suspect in the Port Victoria Criminal Case no. 466 of 2024 where Clinton is a complainant. Complainant herein stated that he took him home but did not assault him. That by the time peter was being assaulted, he was already at home. 10. DW3 Clinton Juma Oduor testified that he does not know the complainant and has never interacted with him prior to this case. 11. DW4 Samuel Olima Wandera testified that he only got to know the complainant during this case. He denied assaulting him. 12. DW5 Davis Javan Wafula testified that he did not know the complainant herein prior to this case. He denied committing the offence herein. 13. 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. 14. 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. 15. 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. 16. In their submissions, 1st, 2nd, 4th and 5th accused persons all submitted that the prosecution had failed to prove their case beyond reasonable doubt for reasons that identification was not proper that night, that none of the stolen items were recovered in any of their possessions, that the degree of injury was not noted in the complainant’s P3Form and hence ought to be struck out, that there was no independent witness to corroborate the testimony of the complainant and finally, that reasonable doubt worked in their favour. 17. 3rd accused on his part submitted that at no time did any of the witnesses mention his involvement in the robbery. That his evidence that he never committed the offence remained unchallenged. ***Issues for Determination*** 1. Whether the complainant was robbed. 2. Whether violence was used during the robbery. 3. Whether the accused persons were positively identified as the perpetrators. ***Analysis and Determination*** 1. Section 296 (2) of the Penal Code provides that: 1. ***(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately 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.*** 2. 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 — 1. 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. 3. Accused persons have raised in their submissions several factors which I have taken into consideration. 4. 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.*** 5. 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).*** 6. 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. 7. 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 accused persons are innocent of the crime charged? 8. There is no dispute that the complainant sustained serious injuries. PW3's medical evidence corroborates PW2's testimony that he was viciously attacked using sharp weapons. The injuries were consistent with the account given by the complainant and remained unchallenged. 9. The complainant also testified that he lost his shoes, jumper and Kshs.1,000 during the attack. Although the stolen items were never recovered and documentary proof of ownership was not produced, ownership of ordinary personal effects may be established through oral testimony. I find no reason to doubt the complainant's evidence regarding the property stolen. 10. The central issue is whether the accused persons were properly identified. 11. The robbery occurred at night. Courts exercise caution in relying on visual identification made at night. However, recognition is generally more reliable than identification of a stranger. The complainant testified that he knew the accused persons beforehand as neighbours and village mates. He explained that there was sufficient moonlight and that the attackers carried torches which illuminated a bright light sufficient for him to recognise them. 12. His evidence was clear regarding the specific role played by each of the 1st, 2nd, 4th and 5th accused. The 2nd accused restrained him while he attempted to escape. The 5th accused inflicted the first cut wound using a slasher. The 1st accused struck him with a metal rod, while the 4th accused participated in the attack and suggested that he be killed. This evidence remained consistent throughout cross-examination. 13. Significantly, both PW1 and PW2 were categorical that the 3rd accused was not among the attackers. The investigating officer equally confirmed that the complainant had not named the 3rd accused. There is therefore absolutely no evidence placing the 3rd accused at the scene. 14. The defence mainly relied on an alibi that some accused persons were attending a night vigil. However, the defence witnesses admitted that several accused persons left the vigil around midnight and they could not account for their whereabouts thereafter. Consequently, the alibi evidence does not displace the positive recognition evidence by the complainant. 15. The defence further argued that no stolen property was recovered and that no independent witness testified. Recovery of stolen property is not an essential ingredient of robbery with violence where there is credible direct evidence identifying the offenders. Equally, there is no legal requirement that the testimony of a single witness must be corroborated before a conviction can be based upon it, provided the court warns itself of the danger and is satisfied that the witness is truthful. 16. Having carefully warned myself of the danger of relying on a single identifying witness, I am satisfied that the complainant's evidence was honest, consistent and credible. His evidence was supported by the medical evidence and the prompt report made immediately after the attack. 17. The prosecution has proved beyond reasonable doubt that the 1st, 2nd, 4th and 5th accused persons jointly robbed the complainant while armed with dangerous weapons and wounded him during the robbery. The ingredients of robbery with violence under section 296(2) of the Penal Code have therefore been established against them. 18. With respect to the 3rd accused, the prosecution failed to adduce any evidence connecting him with the offence. Indeed, the complainant expressly excluded him from the group of attackers. The benefit of doubt must therefore be given to him. 19. I therefore find that the prosecution has proved its case against the 1st, 2nd, 4th and 5th accused beyond reasonable doubt. 20. Accordingly, the 1st accused, Simon Obwogo Wafula, the 2nd accused, Ernest Wandera Sanyais the 4th accused, Samuel Olima Wandera and the 5th accused, Davis Javan Wafula, are all hereby found Guilty of the offence of robbery with violence contrary to section 296(2) of the Penal Code and each is convicted under section 215 of the Criminal Procedure Code. 21. 3rd Accused, Clinton Juma Oduor is found NOT GUILTY and is hereby acquitted of the charge of robbery with violence contrary to section 296(2) of the Penal Code pursuant to section 215 of the Criminal Procedure Code. He is hereby set at liberty forthwith unless otherwise lawfully held. It is so ordered. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 8TH DAY OF JULY 2026. **Hon. Anne Njeru** **SENIOR RESIDENT MAGISTRATE**