https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12687

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA NO. E066 OF 2022** **SIMEON MWANGI NJUI............................................................... APPELLANT** **-VERSUS-** **REPUBLIC…………………………………………………………..RESPONDENT** **JUDGMENT** **1.** The appellant Michael Mwangi Ngige and Simon Mwangi Njui, were charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. **2.** The particulars read that on the 16th day of March 2022 at Kahuro Sub County within Muranga County while armed with rungus and a knife robbed off Gitau Mbugua Karumehis cashKshs.300/- mobile phone of Kshs. 1,200/- and a panga of Kshs.300/- all valued at Kshs.1,800/- and immediately before such robbery wounded the said Gitau Mbugua Karume. **3.** In the alternative count, the 2nd accused was charged with the offence of handling stolen good contrary to Section 322(1) as read with Section 322(2) of the Penal Code. The particulars read that on the 16th day of March 2022 at Kahuro Sub County within Muranga County otherwise than in the course of stealing dishonestly received or retained one mobile phone knowing or having reason to believe them to be stolen goods. **4.** The issue for determination is whether the appeal has merit. **5.** This being a first appeal, the duty of the court was well stated in **Okeno v Republic [19721 EA 32** thus: *"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination* ***(Pandya vs. Republic (1957) EA. (336)*** *and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.* ***(Shantilal M. Ruwala vs. R. (1957) EA. 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 finding and conclusion; 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 vs. Sunday Post [19581 E.A 424. "*** **6.** The Court of Appeal in the case of **Johana Ndungu Vs Republic Criminal Appeal No.116 Of 1995**. as follows: - 1) If the offender is armed with any dangerous weapon or instrument; or 2) If he is in the company with one or more other person or persons, or; 3) If at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. **7.** It is trite law that proof of any one of the above ingredients of robbery with violence is enough to sustain a conviction. **8.** The Court of Appeal in the case **of Johana Ndungu Vs Republic Criminal Appeal No.116 Of 1995** as follows: - **9.** If the offender is armed with any dangerous weapon or instrument; or ii. If he is in the company with one or more other persons or persons, or; iii. If at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. **10.** In answering the question whether the appellant was in the company with one or more other persons or persons, The complainant herein testified that the assailants were two, one from behind and the other on the front. The court is satisfied that the appellant was at the scene of crime in the company of another person. **11.** PW1 testified that during the robbery he was hit on the head and right shoulder with something huge which caused him to fall. **12.** Further, he said that he had his mobile phone in his right trouser pocket which he held on but the assailants stabbed him thrice so that he could let go his phone. **13.** This evidence is corroborated with that of PW2, a clinical officer who testified that the victim went to the hospital with a history of having been assaulted by robbers. **14.** He testified the examination revealed a scar on the right thigh and this was because he had stayed for several weeks before he went to him. **15.** The court is satisfied that at the time of the offence the appellant was armed. **16.** On the issue of duplicity of the chargesheet it is this court’s finding that duplicity only arises where two or more offences are charged in a single count. In the present case, robbery with violence was charged as the principal offence under Section 296(2) of the Penal Code, while handling stolen goods was properly framed as an alternative count under Section 322 (1) of the Penal Code. **17.** The two counts were separate, distinct, and mutually exclusive, and no prejudice was occasioned to the Appellant. **18.** Further, the law is settled that an accused person cannot be convicted on both the principal and alternative counts arising from the same facts. **19.** On another front, the appellant argues his right to fair hearing under Article 50 of The Constitution was taken away during the trial since the court failed to inform him of his right to legal counsel given the gravity of the offence he was charged with. **20.** In **Republic vs Karisa Chengo and 2 others [2017] eKLR**, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that; “*In accordance with the language of the* [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.* **21.** From the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution). **22.** The right to counsel is not an automatic entitlement to persons charged with the offence of robbery with violence. **23.** In any event the appellant fails to demonstrate the prejudice that he suffered if any. **24.** This ground lacks merit. **25.** The court shall now address its mind to the issue of sentencing the Court of Appeal, on its part, in [**Bernard Kimani Gacheru v Republic**](https://new.kenyalaw.org/akn/ke/judgment/keca/2002/94) **[2002] eKLR restated that:** *“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist*.” **26.** The court is of the view that the conviction and the sentencing were legal. **Determination:** **27.** The appeal lacks merit. **Order;** The Appeal is dismissed. **Dated, Signed and Delivered Virtually at Eldoret this 22nd day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**