https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12343

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CRIMINAL APPEAL NO. E025 OF 2024** **SIMON MUCHANGI ……………………………APPELLANT** **VERSUS** **REPUBLIC……………………………………..RESPONDENT** *(Being an Appeal from the Conviction and sentence at the Chief Magistrate’s Court Criminal No.E570 of 2022 by Hon. J.M.Gandani – (C.M) delivered on 18th January , 2024.)* **JUDGEMENT** 1. Simon Muchangi (Appellant) was the 2nd Accused in Chuka Chief Magistrate’s Court Criminal Case No. E570 of 2022. They were charged with the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code. The particulars of the offence were that on 17th day of September 2022 at Ndagani sub-location, Karingani location, in Meru South sub-County within Tharaka Nithi County jointly with others not before court robbed Felix Muriki James a mobile phone make Tecno Spark 8p valued at Kshs.16,500/-, and immediately after the time of such a robbery wounded the said Felix Muriki James. 2. They denied the offence and the case went into full trial in which the Prosecution called four witnesses. 3. Put on their defence, each Accused gave sworn testimony and did not call any witnesses. 4. At the conclusion of the trial, Hon. Gandani (then C.M) convicted and sentenced each Accused to serve 10 years’ imprisonment. 5. Aggrieved by the conviction and sentence, the 2nd Accused (now Appellant) filed the present appeal. The home-made Petition of appeal dated 9th February 2024 raised several grounds which I have paraphrased to as follows:- 6. That Prosecution case was not proved beyond reasonable doubt. 7. That Prosecution evidence was contradictory and inconsistent. 8. That Prosecution witnesses were not credible 9. That sentence was harsh and excessive. 10. This being a first appeal my duty is to re-evaluate the evidence and arrive at my own conclusion and findings. This duty was re-stated by the Court of Appeal in the case of **Gabriel Kamau Njoroge v. Republic [1987] eKLR** 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. (See Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570).”** 1. I summarise the evidence laid before the trial court as follows. The victim Felix Muriuki James (PW1) testified that he was a student at Chuka University and resided at Imani Hostel Ndagani. That on 17th September 2022 around mid-night, he was returning to his hostel when he was accosted by three people. One of them suddenly strangled him and demanded his (PW1’s) phone. That he resisted and the other two joined him. They grabbed the phone and demanded that he puts the password. 2. PW1 stated that when the assailants tried to escape, he started screaming and held onto one of them, the 1st Accused. The 2nd Accused pulled out a panga and tried to slash him but missed him and slashed the 1st Accused instead. That he continued screaming and the watchman (PW2) came to his rescue. Students also responded and they arrested the 1st Accused and tied him with ropes before police arrived. That the phone (PMF11) was later recovered by the police. 3. PW1 testified that he identified the 2 Accused as there were security lights from the hostels. 4. Japhet Njeru (PW2) was the watchman who responded to the screams by PW1. He told the court that PW1 screamed calling him “Babu, come these people will kill me” and he blew the whistle to attract attention as he ran to rescue PW1. That the other robbers ran off while the students descended on the 1st accused and beat him up threatening to lynch him. 5. Dr. Nicholas Nkonge (PW3) produced the complainant’s P3 Form, [Exhibit 3] and Treatment Notes [Exhibit 2] which showed that he was examined on 20th September 2022 and had bruises on the occipital head scratch marks at the back and a cut on the left upper arm. The degree of injury was classified as harm. 6. The Investigating Officer was No.106622 P.C Nasibo Hassan of Chuka Police Station. He was directed by the Officer Commanding Station (OCS) to respond to a mob justice incident. On reaching the scene, he found the 1st Accused surrounded by a mob and having a cut on his head. That he found the complainant injured with a cut on his hand. There were administration police officers attached to Chuka University. That the 1st Accused escorted the police to his house where they recovered a phone make Tecno Spark 8 B [Exhibit 1]. That the 1st Accused told the complainant his co-offender would have taken the phone to his (1st Accused’s) house. **The Defence Case** 1. The 1st Accused stated his sworn defence that he was escorting a lady friend home at around mid-night when they were attacked by two people on the way claiming that the lady was his girlfriend. That the lady ran away while he screamed and the watchman Osman came to his rescue and told the mob not to beat him. That when the police came both himself and the complainant were arrested and by that time there were about 50 people. The 1st Accused denied that the phone produced in court as an exhibit was recovered from his house. He also stated that he only saw the 2nd Accused (now Appellant) in court and was a stranger to him. 2. The 2nd Accused (Appellant) gave sworn testimony in which he denied the charges. He told the court that he was in his house on 22nd September 2022 when four people showed up and introduced themselves as police officers and told him that the OCS wanted to see him. That they searched his house and found nothing. That the following day he was taken to the OCS whom he knew as he had been introduced to her by the Investigating Officer some time back. He claimed that he sold drugs on her behalf. That he was implicated in the case because of differences over the illegal drugs business. 3. The Appellant stated that the Prosecution witnesses did not know him and that they had only been approached to frame him. He told the court that there was no identification parade held. He stated in cross-examination that he was a drug trafficker who operated in collaboration with the police. 4. The Appeal was canvassed through written submissions as directed by the court. The Appellant filed submissions dated 14th April 2026 while the Respondent’s submissions were dated 23rd February 2026. The gist of the Appellant’s submissions were that he was framed and the case was not proved against him. The Respondent on the other hand urged that all the ingredients of the offence were proved beyond reasonable doubt. **The Law** 1. The Appellant was charged under Section 295as read withSection 296(2) of the Penal Code which provides:- **“ 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.”** **“296. (1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.** **(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 ingredients of this offence were aptly discussed by **Cockar, C.J., Akiwumi & Shah, JJ.A.** in the case of **Johana Ndungu vs. Republic CRA. 116/1995, [1996] eKLR** where the Court of Appeal in Mombasa stated as follows:- ***“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is ‘use of or threat to use’ actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore -described ingredients constituting robbery are 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 subsection:*** * 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 person or 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.”*** 1. It is trite that the above elements of the offence are read disjunctively so that the adequate proof of the presence of any one element is sufficient to prove the offence. **Issues for determination** 1. From my appreciation of the trial record, the grounds of appeal and the respective submissions of the parties, the overarching issue for my determination is whether the Prosecution case against the Appellant was proved to the required legal standard. To arrive at a definitive finding, I must evaluate the evidence against the ingredients of the offence being:- (i) Whether the Appellant stole from the complainant. 1. Whether the Appellant was in the company of one or more other persons and was clearly identified. 2. Whether the Appellant or his co-accused was armed and used violence on the victim. 3. Whether the Appellant’s defence cash doubt on the Prosecution’s case. 4. I now delve into the evidence as presented by the trial court as I determine the issues as set out above. 5. **Whether the Appellant stole from the complainant.** 6. The Appellant’s main ground of Appeal is that the case was not proved. He asserts in his submissions that he did not steal from the complainant and that the stolen phone was not found in his possession and further that he was not in the company of the his co-accused. 7. By simple definition, robbery with violence is theft committed by the use of violence. The question that must be asked upfront is whether the Appellant (2nd Accused) stole from the complainant. 8. There was evidence that the complainant was attacked and his phone grabbed. He told the court that he was on his way to his hostel when he was attacked by a man who grabbed his phone. He struggled with the man while screaming for help and when he continued resisting, the assailant’s two companions attacked him. He stated that he was hit and one of the assailants took off with the phone. The phone make Tecno Spark 8B was later recovered by the police and produced as Exhibit 1 by PW4. 9. It is clear to this court therefore that the complainant’s phone was taken away from him by one of the assailants. 10. **Whether the Appellant was in the company of others.** 11. It was not clear whether the Appellant was the one who ran away with the phone or not. However, he was in the company of the 1st accused who grabbed PW1. PW1 testified that the assailants were three in number. He stated that the 2nd Accused (now Appellant) tried to slash him with a panga but he bent down and he (Appellant) slashed the 1st Accused on his head instead. 12. PW1’s evidence that the 1st accused was accidently slashed by his co-assailant (the Appellant) placed the Appellant at the scene. PW1 testified that the 1st Accused told the Appellant to slash him (PW1) to force him to loosen the grip he had on him (1st Accused). That the panga landed instead on the 1st Accused when he (PW1) dodged. 13. PW4 testified that when he got to the scene, he found the 1st Accused surrounded by students. That the 1st Accused had a cut on his head. 14. The evidence that the 1st Accused had a cut on his head corroborates the victim’s (PW1) evidence that he was attacked but evaded the panga which landed on the 1st Accused. 15. PW1 testified that he was injured in the robbery. He sustained injury to the neck as the 1st Accused tried to strangle him. He also got bruises from the fencing wire as they struggled. 16. The evidence that PW1 sustained injury was corroborated by medical evidence. PW1 was examined by a clinical officer Joseph Mwenda who also treated him and filed the P3 Form. Dr. Nicholas Nkonge (PW3) testified on behalf of his professional colleague Joseph Mwenda and produced both the Treatment Notes [Exhibit 2] dated 17th September 2022 and the P3 Form, [Exhibit 3] dated 20th September 2022. 17. I have looked at the Exhibits 2 and 3. They show that PW1 was treated at Chuka Referral hospital on 17th September 2026. That he had bruises on the occipital region of the head; scratch marks at the back and a superficial cut on the left upper arm. The injuries were classified as harm. 18. I am satisfied that the victim (PW1) suffered violence the hands of the assailants who also stole his phone. The Appellant was armed with a panga which is a dangerous weapon. 19. **Whether the Appellant was identified as one of the robbers** 20. There can be no conviction without proper identification of the offender. The issue then is whether the Appellant (2nd Accused) was properly identified. 21. The Appellant submitted that he was not one of the robbers and that the stolen phone was not recovered from him. The Respondent on the other hand submitted that though the incident occurred at night, there was sufficient lighting and therefore the conditions were favaourable for identification. 22. Where an incident occurred under unfavourable conditions like night time, the court must carefully examine the identifying evidence. In the case of **Reuben Anjononi and 2 others vs- Republic [1980] eKLR** where it held thus:- **“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 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.”** 1. Further in **Cleophas Wamunga vs. Republic (1989) eKLR** expressed itself as follows:- ***“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger……”*** 1. In this case the offence occurred at night. PW1 testified that there were electricity poles with security lights at the scene. That he clearly saw both the 1st and 2nd Accused. For the Appellant (2nd Accused) PW1 was categorical that he saw him with the panga when he went to slash him. That he saw him clearly. 2. Cross-examined by the Appellant, PW1 stated “you were the one who raised the panga to cut me but I hid under the 1st Accused so you ended up cutting the 1st Accused. There are electricity poles which had security lights nearby. I had been seeing you in Ndagani before then. I mentioned to the police that I used to see you in Ndagani….. you came very close to me. Your face was bare. I saw you clearly…..” 3. I am satisfied from the evidence of PW1 that he was able to see and recognize the Appellant. There was sufficient lighting and he stood close as the Appellant attempted to slash him so as to release the 1st accused who was then under the firm grip of PW1. Besides, PW4 testified that the 1st Accused who was arrested in the act named his accomplices including the Appellant. 4. From my analysis above, I am satisfied that the Appellant was properly identified as the second robber. Though he was not the one who grabbed the phone his co-accomplices grabbed and ran away with the phone which was later recovered. He is the one who visited violence upon the complainant. They acted in concert and executed a common intention to rob the complainant. **The Appellant’s defence** 1. I have considered the Appellant’s defence and his extensive submissions that he was framed. He stated that he had underhand dealings with the OCS with whom they engaged in illicit drug business and that he owed the OCS Kshs.30,000/-. 2. Other than making the allegation, the Appellant did not provide evidence to support his assertion that he was framed. He alleged illegal activity to evade responsibility in the offence he committed. 3. His allegations do not displace the Prosecution ease which I have found proven. 4. **Whether the sentence was harsh and excessive** 5. The trial court convicted the Appellant and his co-Accused as charged under Section 215 of the Criminal Procedure Code. In sentencing the Accused, the court stated:- “From the circumstances of the case there was evidence that the accused had been armed with a panga and actually used physical force and the said panga against the victim. This was a very serious and dangerous crime that was committed. The Accused are to say the least, a danger to the public. They are dangerous offenders so deserves custodial sentence. I now sentence the Accused persons to ten years (10) years imprisonment. Right of appeal explained.” 1. The sentence for robbery with violence under Section 296 (2) is death. This court observes that the sentence of 10 years imprisonment was not only lenient but unlawful. The Appellant must consider himself lucky that he was not served a notice of enhancement of sentence, and that Prosecution did not seek such enhancement; for this court would have been under duty to enhance such sentence. 2. In the end, I have come to the finding that the ingredients of the offence of robbery were proved and the case against the Appellant was proved beyond reasonable doubt. The Appeal against conviction and sentence is dismissed. 3. The Appellant has 14 days’ right of appeal. Orders accordingly. **Judgment delivered, dated and signed at Chuka this 31st day of July, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgment delivered in the presence of the Appellant acting in person at Mwea Prison. Ms Rukunga for the Respondent; and Muriuki (Court Assistant).**