Kimani v Republic [2026] KEHC 9102 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIBERA CRIMINAL APPEAL NO. E001 OF 2026 SIMON PETER KIMANI……………………………………………. APPELLANT VERSUS REPUBLIC……………………………………..…………………...RESPONDENT *(Being an appeal against the original conviction and sentence delivered on 16th December 2025 by Hon. Z. Abdul (PM) at Kibera Chief Magistrate’s Court Criminal Case no. E2007 of 2023 Republic vs Alex Kibisu and Simon Peter Kimani)* JUDGEMENT 1. The appellant was jointly charged with another not before this court for the offence of robbery with violence contrary to section 296(2) of the Penal Code, He was convicted sentenced to death.

2. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal challenging the sufficiency and reliability of the prosecution's evidence, the fairness of the trial, and the sentence imposed. In summary, he contends that the prosecution witnesses were too frightened during the incident to make a reliable identification; that PW1's initial statement contained no meaningful description of the assailant; that the identification parade was compromised because PW1 had seen photographs of the appellant and his co-accused beforehand; that the doctrine of recent possession was inapplicable since the stolen property was recovered from the first accused, who remains at large; and that the mandatory nature of the death sentence is unconstitutional.

3. This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32).

4. The prosecution called five (5) witnesses in support of their case. PW1, Duncan Sayi Shiemi the complainant testified that on 30th November 2023 as he was walking home from work, three persons approached him while riding on a motorcycle. They disembarked and ordered him to sit on the ground. When he declined to do so, they frisked him and forcefully snatched his phone as well as his backpack which contained his laptop. As he tried to escape, the appellant shot his leg. Undeterred, PW1 continued to run and fortunately came across two police officers to whom he narrated the ordeal. He was immediately rushed to Lang’ata Hospital where received medical care, and thereafter his family transferred him to Forces Memorial Hospital.

5. Owing to the presence of streetlights in the area where the incident took place, he took note of the fact that the first accused had a scar above his eye and, that the appellant who had shot him had the lightest complexion amongst the three. These characteristics aided him during the identification parade. He also recovered his stolen property, for which he adduced receipts as proof of ownership.

6. PW2, PC Asman Omar upon being informed of the incident that night was able to track the first accused and the appellant using the complainant’s phone signal. The first accused and appellant were apprehended while playing pool in a pub, with the first accused found in possession of 18 mobile phones, a laptop, a Mercedes Benz car key, a toy pistol, a pistol-shaped lighter and foreign currency notes. They were thereafter transported to the police station where they were charged.

7. PW3, Dr. Kamau Mariga, a police surgeon produced the complainant’s P3 form in court, indicating that he suffered grievous harm from a gunshot wound on his lower left limb for which he was treated at the Forces Memorial Hospital.

8. PW4, IP Benard Kadenge Kazungu conducted the identification parade, having explained the procedure and importance of the same to the participants. PW1 was able to identify the first accused as well as the appellant during the exercise by touching their shoulders. PW4 then adduced the identification parade forms as exhibits before the court.

9. PW5, PC William Kemboi the investigating officer, stated that on the 29th of November 2023 as he was on patrol, he received a call from one of his colleagues informing him of the incident that left the complainant injured. He then rushed to the hospital, where he found the complainant in a stable condition. The complainant arrived at the police station the following day where he recorded his statement and was issued with a P3 Form. The complainant also handed in the receipts to his lost items, an Iphone 7 and a Macbook. Upon recovery of the lost items, the investigating officer as well as the first accused and appellant signed an inventory form.

10. At the close of the prosecution case, the trial court was satisfied that the prosecution had established a prima facie case. The appellant was then placed on his defence. He fervently denied being involved in the alleged robbery. He averred that he was arrested with fifteen other persons while he was playing pool at a pub and, that he was merely going about his business as a boda boda operator.

11. The appellant was convicted of the offence of robbery with violence. The key ingredients for a robbery with violence charge are found in section 296(2) of the Penal Code. It provides 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”. 1. PW1 testified that on 30th November 2023, while walking home from work, he was confronted by three armed men who arrived on a motorcycle. They robbed him of his iPhone 7, a backpack containing a MacBook laptop and other personal belongings. Ownership of the stolen items was proved by receipts produced in evidence, and some of the stolen property was subsequently recovered.

2. The evidence further established that actual violence was used in the course of the robbery. PW1 testified that as he attempted to flee, the appellant shot him in the left leg. This account was corroborated by the medical evidence of PW3, who produced the P3 form confirming that PW1 sustained grievous harm from a gunshot wound.

3. The prosecution also proved that the robbery was committed by more than one person. PW1 consistently testified that he was attacked by three men acting in concert, one of whom was the appellant.

4. As regards identification, PW1 stated that the scene was illuminated by streetlights, enabling him to observe the appellant during the robbery. He subsequently picked out the appellant at an identification parade conducted by PW4. His identification was further reinforced by the appellant's arrest shortly after the robbery following the tracking of PW1's stolen mobile phone.

5. I am therefore satisfied that the prosecution proved all the essential ingredients of the offence of robbery with violence under section 296(2) of the Penal Code beyond reasonable doubt.

6. With regard to sentence, the appellant was sentenced to death, which was the prescribed sentence for the offence under section 296(2) of the Penal Code. However, sentencing is now a discretionary judicial exercise requiring the court to consider the circumstances of the offence, the offender and the applicable sentencing principles.

7. I am guided by the decision of the Court of Appeal in Evans Nyamari Ayako v Republic, Criminal Appeal No. 22 of 2022, which observed that a sentence of life imprisonment should, in appropriate circumstances, be understood as a determinate sentence of up to thirty years' imprisonment.

8. Having considered the violent nature of the robbery, in which the appellant, acting jointly with two others, shot the complainant and caused him grievous harm, while also taking into account the need for proportionality and consistency in sentencing, I find that the death sentence imposed by the trial court was excessive. It is accordingly substituted with a sentence of thirty (30) years' imprisonment. Pursuant to section 333(2) of the Criminal Procedure Code, the sentence shall run from 30th November 2023, being the date of the appellant's arrest.

9. Accordingly, the appeal succeeds only to the extent of the sentence. Orders accordingly. Judgement dated and delivered virtually this 29th day of June 2026 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ D. KAVEDZA JUDGE In the presence of: Applicant Present Mutuma for the Respondent Kirimi Court Assistant.