https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12993

**IN THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **HCCRA NO. E064 OF 2023** **SOLOMON NG'ANG'A KINYUA………………………………………….​9THAPPELLANT** **=VERSUS=** **REPUBLIC……………………………………………………………………..​RESPONDENT** **[Being appeals against the conviction and sentence by Hon. P. M. Maina** **(CM) on 20th April 2023 in Muranga Criminal Case No. 1401 of 2017, Republic** **vs Simon Kamau Wairugi & 8 others)** **JUDGMENT** 1. The Appellant appeals against the conviction and sentence by Hon. P. M. Maina (CM) on 20th April 2023 in Muranga Criminal Case No. 1401 of 2017, Republic vs Simon Kamau Wairugi& 8 other.Herespectfully submits that the conviction was unsafe and ought to be quashed because of the following amended grounds of appeal: 2. The conviction was based on unreliable visual identification. 3. The trial court failed to properly warn itself of the dangers of reliance on a single identifying witness. 4. The prosecution failed to prove the case beyond reasonable doubt. 5. The Appellant's defence was not properly evaluated. 6. The sentence was harsh, excessive and unconstitutional. 7. He places reliance in the case of **Okeno vs Republic** held that, *"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court's own* decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. " 1. The Appellant prays that this Honourable Court: 2. Allows the appeal 3. Quashes the conviction 4. Sets aside the sentence 5. Orders that the Appellant be set at liberty unless otherwise lawfully 6. The Court has consistently held that where a conviction rests on identification evidence or a single witness, the appellate court must carefully examine the evidence to ensure that no miscarriage of justice occurred. The Courts have repeatedly warned of the danger of convicting on visual identification without careful scrutiny. 7. It is trite law that where the only evidence against an Accused Person is evidence of identification or recognition a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error or mistake before it can safely make it the basis of a conviction [See, **Otieno Wanunga Vs. Republic [1989] eKLRJ.** 8. The Court of Appeal for Eastern Africa in the case of **Abdullah Bin Wendo Vs. Republic [20EACA]166**, stated that: - *"Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is know that the conditions favouring correct identification were difficult. In such circumstances, what is needed is other evidence whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness; can safely be accepted as free from the possibility of error."* 1. And, in **Roria Vs. Republic [1967] EA 583**, the Court of Appeal stated that: - *"A conviction resting entirely on identity invariably causes a degree of uneasiness...... That danger is, of course, greater when the only evidence against an Accused Person is identification by one witness and although no one would suggest that conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all circumstance it is safe to act on such identification."* 1. He submits that the it is important that evidence of visual identification in criminal cases ought to be examined carefully to minimize the danger of bringing about miscarriages of justice especially where a case depends wholly or to a great extent on the correctness of one or more identifications of the Accused, the court is required to warn itself of the special need for caution before convicting the Accused [See, the **Cleophas Otieno case [supra].** 2. He also relies on the case of **R v Turnbull and Others (1976] 3 ALLE *2549*** *stated that:* *"Secondly the Judge should direct the jury to examine closely the circumstances in which the identification by such witnesses came to be made. How long did the witness have the Accused under observation" At what distance" In what light" Was the observation impeded in any way, as for example by passing traffic or a press of people" Had the witness ever seen the Accused before" How often" If only occasionally, had he any special reason for remembering the accused".* 1. He submits that the trial court wrongly convicted and sentenced the appellant but failed to find that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is know that the conditions favouring correct identification were difficult. 2. As held in the above cited case law in such circumstances, what is needed is other evidence whether it be circumstantial or direct pointing to guilt, from which the trial court could reasonably conclude that the evidence of identification, although based on the testimony of a single witness; can safely be accepted as free from the possibility of error. 3. In the instant matter, PW 1 is a single identifying witness. The conditions for identification were difficult. PW1 told the trial court that incidence occurred on 30/04/2017 at 2.30 am. See also page 53 line 19 where PW2 told the court that the incidence occurred on 29/042017 at around 2.00 am. 4. PW2 told the trial court that there was light but not very bright.PW10 the investigation officer told the trial court that the attack occurred on 30/04/2017 at midnight. The electricity was disconnected and it was raining. The attackers had dismantled the electricity. 5. He submits that it is clear that the circumstances for identification were difficult. PW2 being a single identifying witness and the circumstances for identification being difficult, the trial court was bound to test the evidence of identification with care to eliminate any possibility of error. The appellant submits that the trial court did not test PW2s evidence on identification with care and that the learned trial magistrate did not warn himself on the dangers of relying on PW2s evidence who is a single identifying witness for that matter. 6. PW2 was not in a position to describe the people that attacked her because the circumstances of identification was difficult and because of fear coupled with the fact that she was injured. In the case of **James Odhiambo Okete v Republic [2011] eKLR** where the Court held that visual identification of the accused by a child witness at night was unsafe and unreliable where proper caution was not exercised and conditions (darkness, shock) made accurate identification dubious. 7. Further, the appellant submits that PW2 was not consistent on her evidence identification. For instance, PW1 told the trial court that it was accused 7 who came with her sweater at the hospital while bandaging his wound. However, PW10, told the trial court that it was Accused 1 who came to court while bandaged with PW2s sweater. 8. PW2 told the trial court that the lights were on. However, PW10 the investigation officer, told the trial court that the electricity was disconnected. 9. Faced with the same matter before you, the Court of Appeal in **Maitanyi Republic (1986] KLR 198**, this Court stated as follows: *"Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidencE of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.* *When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description.* *The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before decision* *is made.* *Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction."* 1. In **Stephen Nungu Maina v Republic [2013]** Eklr the Court of Appeal overturned conviction where a single witness claimed to have seen the appellant for a short time under stressful conditions without prior description, noting risk of mistaken identity. 2. The complainant in the present matter did not report the case by herself. The person who made the report did not testify. PW2 being the complainant, did not give any description of the people who attacked her to the police while reporting. 3. PW2 told the trial court that she did not give the descriptions of the people that attacked her. May this honorable court also find that PW2 did not tell the trial court whether she could identify them in the event she sees them. 4. The Court of Appeal in **Njihia v Republic** held that: If properly conducted, the resulting evidence is of great value. But if the parade is badly conducted the complainant will hardly be able to give reliable evidence of identification. The same principle was reiterated in **Kemboi v Republic**, where the Court emphasized that an improperly conducted parade undermines the reliability of identification evidence. 5. In the present matter we submit that the identification parade was not properly conducted as it faulted the police force standing orders that governs how the identification parades ought to be conducted. For instance, as stated above, the complainant did not give any description of the alleged attackers to the police that could aid the police in arresting the suspects. 6. PW2 while under cross examination by the appellant told the trial court that she did not give the descriptions of the appellant to the police.PW10 told the trial court that PW2 said that she could identify her assailants but did not give descriptions. 7. He submits that the appellant was arrested out of suspicion and suspicion alone without prove cannot make a charge stand. No description of the alleged robbers was given to the police to aid in the arrest of the alleged robbers. 8. PW10s assertion that PW2 said that she was able to identify her assailants was not corroborated by PW2. During cross examination PW2 did not mention whether she saw the appellant among the people that attacked her. It was not possible for PW2 to identify her assailants yet she did not give their descriptions while recording her statement and while reporting this matter to the police. 9. The Court of Appeal in **Samuel Kilonzo Musau v Republic**" stated: -"The purpose of an identification parade, as explained in **Kinyanjui & 2 Others v Republic (1989) KLR 60,** *"Is to give an opportunity to a witness under controlled and fair conditions topick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion? It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification* *parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness's attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification."* 1. He submits that the manner in which the identification parade was conducted was unfair. 2. In the case of **R v Mwango s/o Manaa** as follows: “a. *The accused has the right to have an advocate or friend present at the parade;* *b. The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness;* *c. Witnesses should be shown the parade separately and should not discuss the parade among themselves;* *d. The number of suspects I the parade should be eight (or 10 in the case of two suspects);* *e. All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race:* *f. Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; and* *g. As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.”* 1. The appellant participated in the parade without legal representation simply because he was not in a position to hire one. The officer conducting the identification parade was therefore legally enjoined to ensure that he conducted the identification parade in a fair manner. 2. The appellant in his defence told the trial court that the Identification parade was unfairly conducted. PW2 while under cross examination by the appellant told the trial court that all types were on the parade. 3. PW2 told the trial court that the parade was made up people of different sizes and members. The appellant in his defence told the trial court the identification was made up of people from a construction site with different dressing and that 4. PW2 did not give descriptions that could lead the police to arrest the appellant. The same identification parade members were used in three different parades to identify accused 6, 7, 8 and 9. This evidence was tendered by PW4 who is a parade officer. 5. Pw4 also told the trial court that the accused persons were not of similar height nor did they look alike. The identification parade was conducted the identification parade was conducted at 11/4/2017 while the alleged offence is said to have been committed on 30/04/2017.The appellant was therefore arrested and identified before the offence was committed. 6. Under **Section 296[2] of the Penal Code** the prosecution was required to prove that, The offender must be armed with a dangerous weapon. He must be in the company of others. 1. If at all immediately before or after the time of the said robbery, his wounds beats, strikes or uses of actual violence or threatening to use violence to any person. 2. The appellant submits that though prosecution proved the ingredients of robbery with violence, but submits that no evidence either direct or circumstantial that linked him to the instant offence. He submits that under **Section 107 of the Evidence Act (Cap 80 Laws of Kenya),** the burden of proof lies upon the prosecution to prove its case beyond reasonable doubt. The principle was emphasized by the Court of Appeal in **Sawe v Republic** where the court held that suspicion, however strong, cannot form the basis of a conviction in criminal cases. 3. The Appellant was not found in possession of the said property. No exhibit allegedly stolen from the complainant was recovered from the Appellant. 4. The doctrine of recent possession can only apply where the prosecution proves: 5. The property was stolen. 6. The property was found in possession of the accused. 7. The possession was recent. 8. The accused failed to give a reasonable explanation. 9. This principle was clearly stated by the Court of Appeal in **Arum v Republic** where the court held that before relying on the doctrine of recent possession, the prosecution must prove that the accused was found with the stolen property. Similarly, in **Malingi v Republic**, the Court of Appeal held that the doctrine of recent possession only arises where possession of stolen property is positively proved. In the present case, no property belonging to the complainant was recovered from the Appellant. Therefore, the doctrine of recent possession could not lawfully be invoked. 10. Under Section 169(1) of the Criminal Procedure Code (Cap 75 Laws of Kenya), a judgment must contain: The points for determination, The decision thereon, the reasons for the decision he submits that the failure to evaluate the defence amounts to a violation of this statutory requirement. 11. Further, Article 50(2) of the Constitution of Kenya, 2010 guarantees the right to a fair trial, including the right of an accused person to have their defence fully considered. 12. He argues that his defence was not analyzed and considered and in particular the issues he raised that PW2 never gave any description to the police linking him with the offence. His concerns about the parade were not considered. 13. He also raised the issue that the report was made by Joyce Njoki who was not called to [testify. He](http://testify.he) is concerned since in his judgment, the learned trial magistrate did not weigh his defence evidence against that of the prosecution which prejudiced him and his right to a fair trial as enshrined by the constitution on article 25 [c] and 50 [2] of the constitution. 14. The Court of Appeal in **Okeno v Republic** held that: *"The first appellate court must reconsider the evidence, evaluate it itself and drawn its own conclusions."* This authority underscores the duty of courts to analyze the entire evidence including the defence. 1. The Court of Appeal in **Kiilu & Another v Republic** restated that a trial court must consider the defence and weigh it against the prosecution evidence before arriving at a conviction. The burden remains on the prosecution to prove the case beyond reasonable doubt. The defence only needs to raise a reasonable doubt. 2. He prayers that may this court find that the trial court's omission therefore prejudiced the him and led to an unjust conviction by failing to evaluate my defence and that the trial court could not properly determine whether the prosecution discharged its burden of proof. 3. The appellant was charged with the offence of Robbery with violence contrary to section 296[2] of the Penal Code. The punishment for this offence is a minimum mandatory Death Sentence. He submits that the learned trial magistrate wrongly meted this minimum mandatory sentence on the appellant. Section 296(2) of the Penal Code prescribes a mandatory minimum death sentence for robbery with violence. 4. The Supreme Court in **Francis Karioko Muruatetu & Another v Republic** declared the mandatory nature of the death sentence unconstitutional on grounds that it: Deprives courts of judicial discretion, Violates the right to fair trial under Article 50(2) of the Constitution 2010, undermines dignity under Article 28 of the Constitution. The Court held that sentencing is a judicial function that must allow consideration of mitigating circumstances. Although subsequent directions clarified the application of Muruatetu, the core constitutional principle remains. A mandatory sentence that removes judicial discretion is unconstitutional. The Court of Appeal in William Okungu Kittiny v Republic extended the reasoning in Muruatetu to robbery with violence under Section 296(2) of the Penal Code. 5. The mandatory imposition of death violates Article 25(c) of the Constitution 2010 which provides for the right to a fair trial (non-derogable), Article 27 of the Constitution which advocates for equality before the law regardless of one’s position, status, color or race among others, 6. Article 50(2)(q) of the constitution which calls for the accused persons right to benefit from the least severe sentence and the least severe sentence in this matter is the one that reflects the circumstances of the offence. 7. He invites the court to find that Sentencing must meet constitutional standards of proportionality. The mandatory minimum death sentence meted on the appellant sentence violates constitutional safeguards as it was meted as a blanket sentence equating all robbery with violence cases irrespective of factual distinctions thus fails the proportionality test. 8. In **Geoffrey Mutisya Maingi v Republic (Criminal Appeal 183 of 2023) (2024] KEHC 1573 (KLR)** vacated the death sentence imposed and resentenced the appellant to 20 years' imprisonment. This reflects judicial reluctance to maintain mandatory capital punishment when mitigating factors support significant terms. He invites this court to set aside the death sentence imposed on the appellant and mete a lenient definite sentence reflecting the time the appellant has spent in custody by the appellant and the mitigating factors in the event this appeal fails on conviction. **The Respondent's Submissions;** 1. In opposing the appeal, it submits that Section 295 of the Penal code provides that: ***“****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.”* 1. **Section 296(2) of the penal code** provides that: *“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. From the above provision of the law, the necessary ingredients of the offence that must be proved are: 1. That the offender committed robbery-stole anything 2. At the time of the offence he was in the company of another; or; he was armed with a dangerous or offensive weapon; or; he used actual violence on the victim 3. Proper Identification of the offenders. 2. PW2 was very clear in her evidence. She narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries. 3. Further PW2 gave in detail what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant herein (Simon Kamau Wairugi). 4. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room. 5. Her evidence was corroborated by PW1, their neighbour on the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene. 6. The identification by PW2 met all the conditions set by the Court in **Obwana** **&others vs Uganda (2009)2 EA** being**:** 7. The length of time the witness took to identify the accused. 8. The distance from which the witness identified the accused. 9. The source of light that was available at the material time. 10. The court, in convicting, considered the strength of the identification evidence of PW2, cautioning itself in light of precedents that she was a single identifying witness. The evidence was so clear that no doubt whatsoever was cast as to the identity of the perpetrators. 11. PW2 was very categorical on identifying the attackers during the incident. She said there were lights on, the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack. That's how she was able to pick them all out in an identification parade. The identification parades were proper and in accordance with the Forces standing orders. 12. Althoughtheburdenon the prosecution is to prove either of them, it submits that this case met all three. The attackers were more than one person, they were armed with dangerous weapons and they did inflict actual violence on the complainant and worse, killed her husband and mother-in law. 13. PW5 provided medical evidence corroborating the injuries suffered by the complainant, PW2. This is evident from the testimony of PW1, PW2 & PW5coupled with that of all the other prosecution witnesses. 14. All elements of the offence of robbery with violence were proved. 15. The Evidence Act, Section 143providesthat: *“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."* 1. In this case, all necessary witnesses were called and the necessary ingredients of the offence were proved beyond reasonable doubt. 2. The appellants, in their defences tried to raise an alibi. The Court analysed this at length at pages J10 to J21 in the judgement at page J42-J43. 3. From the judgement, it is clear that the court indeed weighed the defences raised and found that the same were mere denials and raised as an afterthought and that they did not cast doubt on the prosecution case or even discredit the complainant's evidence on their identification. The court found no the defences to be a sham. **Whether the charging of the appellants herein amounted to double** **jeopardy** 1. In their submissions, the 3rd and 7th appellants argue that being charged in the matter herein amounted to double jeopardy. 2. The appellants were charged with a separate the offence of murder in **Hc.Cr.C/22/2017 The Republic Vs Simon Kamau Wairugi and Samuel Nyoike Ndungu Alias Lala and 7 Others.** The matter is still ongoing and has a hearing date of 07/07/2026 before Murang'a High Court No.2. The matter is therefore subjudice therefore the issue of double jeopardy cannot arise by virtue of the said matter. In any event, the offences are separate, the victims of the offences are different. 3. In urging the court not to disturb the sentence, we submit that sentencing is a matter of judicial discretion, within the confines of the law. The court **in Pamella** **Akoth** **Owuor v Republic [2008] Eklr stated:** ***“****A Court's discretion in sentencing is regulated by law. And where this* *discretion is judiciously and responsibly exercised within the scope* *defined by law,the correct stand in law, in my opinion, is that the* *sentence as imposed is right; and consequently, it is the just deserts of* *the accused that he or she should serve that sentence.”* 1. In the particular circumstances of this case, the court indeed exercised its discretion responsibly. From page 157 of the record, it is very clear that the court considered all relevant factors, including the fact that the principles set out in Muruatetu primarily applies to murder cases under sections 203 and 204 of the Penal Code. Further and more crucially, the court took into account the principles of proportionality, accountability and transparency. The court therefore gave sentences that were both legal and commensurate to the offences committed. We submit that no ground has been raised to challenge the sentencing discretion of the trial court and disturb the sentences imposed. **Analysis and determination**; 1. Having looked at the Appellant’s Amended Grounds of Appeal, the written Submissions and those of the Respondent, the issues that arise for determination were as follows:- 1. Whether or not the prosecution proved its case beyond reasonable doubt and 2. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. 2. Having set out the parties cases I will proceed to evaluate and scrutinize the evidence and proceedings on record and reach my own independent conclusion as espoused in **David Njuguna Wairimu V Republic [2010]** where the court of appeal held: *-“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.* 3. The offence of robbery with violence is a creation of Sections 295 and 296(2) of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1930/10). It is axiomatic that in considering the offence of robbery with violence under section 296 (2) of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1930/10), regard must be had to section 295 of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1930/10) which defines robbery in the following terms: 4. *“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.”* 5. In **Moneni Ngumbao Mangi v. Republic, CR APP No 141 of 2005** (Mombasa) the Court stated that: *“The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property”.* 1. To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. In **Johana Ndungu V. Republic, CR. APP. No. 116 of 1995** the Court extrapolated the position as follows: *“In order to appreciate properly as to what acts, constitute an offence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the* [*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1930/10)*. 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. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2) …” (Emphasis added).* (**See also Ganzi & 2 Others V. Republic (2005) 1KLR 52**). 1. The Court of Appeal in **Oluoch v Republic [1985] KLR** set out the essential elements of the offence as follows: * 1. The offender is armed with any dangerous and offensive weapon or instrument; 2. The offender is in company with one or more persons; 3. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim. 2. On the question of identification**,** PW2 narrated how on the night in question, repeated bangs alerted her to the presence of intruders at their home. They had broken through a window, and she and her husband tried to repulse them but they overpowered them and in the process she was injured while her husband and his mother were fatally wounded and later succumbed to the injuries. 3. PW2 identified the attackers during the incident. She said there were lights on, the attackers had torches and the attackers stayed with them for about one and a half hours. They also kept attacking them at close quarters and this enabled her to identify them properly. She detailed in her exam-in chief the role each appellant played during the attack.Further PW2 gave in detail what was stolen from her during the said attack, being her mobile phone and Kshs27,000. Only 4,900 was recovered from the 2nd appellant. 4. PW2 identified the 2nd appellant herein (Simon Kamau Wairugi) at the hospital while she was undergoing treatment as he was injured and had come to seek treatment, wrapped in a sweater she had placed in her sitting room. 5. Her evidence was corroborated by PW1, their neighbour on the issues of the injuries suffered and on the sweater that the 2nd appellant herein (Simon Kamau Wairugi) was brought into the hospital wrapped in. Further, his DNA was found on the sweater and on pieces of broken glass collected at the crime scene. 6. In **Francis Kariuki Njiru & 7 others v Republic Criminal Appeal No. 6 of 2001**, the Court of Appeal held that identification evidence must be carefully examined, particularly where the incident occurred at night. 7. In **CRA 300/2007, Dima Denge & others -V- Republic (2013) eKLR**, the Court of Appeal stated as follows “the elements of the offence under section 296(2) are three in number and they are to be read not conjunctively; but disjunctively. One element is sufficient to found an offence of robbery with violence”. 8. In **Johana Ndungu -V- Republic CRA 116/1995 (1996) eKLR**, the Court of Appeal set out the following as the ingredients that need to be proved *“(i)if the offender is armed with any dangerous or offensive weapon or instrument; or* *(ii)if he is in company with one or more other person or persons; or* *(iii)if at or immediately before, or immediately after the time of the robbery, he wounds, beat, strikes or uses any other violence on any person”.* 1. In the instant case, PW1 stated that the assailant was armed with a panga; that he hit her with it on the chest. The prosecution only needed to prove one of the said ingredients. The appellant argued that the circumstances in which PW1 was allegedly robbed were not conducive for proper identification of the assailant. No doubt the only witness to the crime is PW1 and the same occurred deep in the night under unfavorable conditions for proper identification. 2. In **Roria -V- Republic (1967) EA 183** the Court of Appeal stated: “*A conviction resting entirely on identity invariably causes a degree of uneasiness…… the danger is, of course greater whether the only evidence against an accused person is identification by one witness and although no one would suggest that a conviction based on such identification should now be upheld, it is the duty of this court to satisfy itself that in all the circumstances, it is safe to act on such identification”.* 1. In the case of **R.V Turnbull (Supra)**, the court set out the questions to be asked by the court in order to establish whether the evidence on identification is sufficient. The court said in **Charo Changawa Karisa -V- Republic**. *“Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by the witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?”* 2. After looking at the entire case, this court is satisfied that the appellants were at the complaint’s house on the night the offence was committed, they were more than one person, armed with dangerous weapons. 3. They inflict actual violence on the complainant as proven by her testimony that was corroborated by PW5’s medical evidence 4. The court finds that the prosecution was able to prove that the appellants stole the property of the victim.PW2 gave in detail what was stolen from her during the said attack, being her mobile phone and Kshs 27,000. Only 4,900 was recovered from the 2nd appellant herein (Simon Kamau Wairugi). 5. The appellants argued that the failure to call the arresting officer and the lady who reported the crime violated the right to fair hearing under article 59 of the Constitution as read alongside Articles 25 and 27. 6. The court is satisfied that the prosecution established its case on the basis of the witnesses who testified and I so hold. 7. The Court of Appeal in **Bukenya & Others v Uganda [19721 EA 549** held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution. 8. This ground lacks merit and it is dismissed. 9. The appellants also argued that the court did not do wider his defence if alibi. The Court analysed this at length at pages 110 to 121 in the judgement at page 142-143. 10. In order to determine whether the court considered the appellants’ defence of alibi the court is guided by the principles as enunciated in the case [**Kiarie v R**](https://new.kenyalaw.org/akn/ke/judgment/keca/1984/65) **[1984] KLR,** the Court of Appeal laid down the following principle: - *“An alibi raises a specific defence and an accused person who puts an alibi as an answer to a charge does not in Law thereby assume any burden of proving that answer and its sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The Judge had erred in accepting the trial Magistrate’s finding on the alibi because the finding was not supported by any reasons.”* 1. It is settled law that the prosecution bore the burden of proving the charge against the appellant beyond reasonable doubt. However, in relying on an alibi defence, the entirety of the prosecution evidence, direct or circumstantial evidence must be appraised to establish whether the appellant was elsewhere and not at the scene of the crime. The conduct of the appellant and the decision to raise an alibi defence during the defence hearing stage of the proceedings should not escape scrutiny of the Court. 2. In **R v Sukha Singh S/o Wazer Singh & Others [1939] 6 EACA 145**, it was held that: - *“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the interval and secondly, if he brings it forward at the earliest possible moment, it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness, proceedings will be stopped.”* 1. Though in law, time of the disclosure might not be in issue, the prosecution no doubt required adequate notice to investigate the allegation of the alibi defence in order to meet it. 2. The governing principle on alibi defence is that a failure to disclose an alibi at a sufficiently early opportunity to permit it to be investigated by the police is a factor which may be considered in determining the weight given to it. See [**Charles Kasena Chogo v Republic**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/603) **[2019] eKLR.** 3. The court indeed weighed the defences raised and found that the same were mere denials and raised as an afterthought and that they did not cast doubt on the prosecution case or even discredit the complainant's evidence on their identification. The court found the defences to be a sham. 4. In **David Ochieng & Others v Republic [20141 eKLR,** the Court of Appeal emphatically held that "a trial court must consider the defence put forward by an accused person and weigh it against the prosecution case." The sacred duty of a judicial officer is to pronounce judgment only after weighing all the evidence in the scales of justice without tilting in favor of either side. 5. From the trial court Judgment**,** the court finds that the trial court considered the appellant’s defence and their entire cases before arriving at the impugned convection. 6. On alleged Contradictions and Inconsistencies, The **Uganda Court of Appeal in Twehangane Alfred vs Uganda** held that it is not every contradiction that warrants rejection of evidence. As the court put it:- *"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis mine).* 1. The applicable principle is that not every discrepancy or inconsistency in the testimony of witnesses is fatal to the prosecution case. The material question is whether the contradiction is substantial and goes to the root of the prosecution case. 2. In **Philip Nzaka Watu v Republic [2016] eKLR**, the Court of Appeal recognized that minor discrepancies are not uncommon in the testimony of truthful witnesses and that it is only material contradictions affecting the substance of the prosecution case that may render a conviction unsafe. 3. Having independently reviewed the evidence, I find that the alleged inconsistencies have no impact on the prosecution case that is weighty enough as to justify the setting aside of the conviction and the sentence. 4. The court will now look at the issue of the identification parade. For an identification parade to be fruitful and of evidential value, the identification rules must be complied with. Failure to adhere to the identification parade guidelines affects the evidential value of a resulting identification. 5. **In** [**Samuel Kilonzo Musau v Republic**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/372) **[2014] eKLR,** the Court of Appeal stated:- “*The purpose of an identification parade, as explained in Kinyanjui & 2 Others v Republic (1989) KLR 60, “is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion.” It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.* 1. The procedures governing police identification parades are provided for in the Police Force Standing Orders pursuant to the [National Police Service Act](https://new.kenyalaw.org/akn/ke/act/2011/11A). These procedures were explained in **R v Mwango s/o Manaa[1936] 3 EACA 29** These include that: - 1. The accused has the right to have an advocate or friend present at the parade; 2. The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness; 3. Witnesses should be shown the parade separately and should not discuss the parade among themselves; 4. The number of suspects in the parade should be eight (or 10 in the case of two suspects); 5. All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race; 6. Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; and 7. As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts. 8. The officers who carried out the Identification Parade testified that they complied with the forces standing orders. 2. From the authorities referred to above, it is clear that PW9 complied with the rules for carrying out an Identification Parade. Despite the appellant’s contestations, there was no evidence adduced to support the appellant’s claim that his identification was flawed. 3. In any event, PW6 testified that he saw the appellant and went on to describe his clothing that he wore a blue T-shirt at the time of the offence and the appellant was unable to displace this testimony. 4. Accordingly, it’s clear that the appellants were positively identified as the assailants who committed the offence. 5. Having considered the totality of the evidence of the prosecution witnesses, I find the evidence of the pw 2 who physically saw the appellants on the material date and time consistent, watertight and believable. 6. In determining the issue of sentencing this court is guided by the case of **Mokela vs The State (135/11) [2011] ZASCA** 166, the Supreme Court of South Africa held that: - *“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”* 1. Section 329 of the [Criminal Procedure Code](https://new.kenyalaw.org/akn/ke/act/1930/11) and placed reliance on the cases of **Shadrack Kipchoge Kogo v Republic Criminal Appeal No 253 of 2003 (eKLRcitation not given) and Benard Kimani Gacheruv Republic[2002] eKLR** where the common thread was that sentence is essentially an exercise of the trial court and for any court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or that the sentence was too harsh and excessive that an error in principle must be inferred. 2. In **William Okungu Kittiny v Republic [2018] eKLR**, the Court of Appeal held that Muruatetu’s case applies to section 296(2) of the [*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1930/10) and that courts must exercise discretion in sentencing offenders. The Court went on to state that:- *“From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the* [*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1930/10)*. Thus, the sentence of death under Section 296 (2) and 297 (2) of the* [*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1930/10) *is a discretionary maximum punishment. To the extent that Section 296 (2) and 297 (2) of the* [*Penal Code*](https://new.kenyalaw.org/akn/ke/act/1930/10) *provides for mandatory death sentence the Sections are inconsistent with Constitution…… “The decision of the Supreme Court only discouraged persons from filing petitions to the Supreme Court but the decision does not prohibit courts below it from ordering sentence re-hearing in a matter pending before those courts. By Article 163 (7) of the* [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, the decision of the Supreme Court has immediate and binding effect on all other courts. The decision of the Supreme Court opened the door for review of death sentences even in finalized cases.”* 1. The court does not find any fault in the manner the appellant was convicted and sentenced. **Determination;** 1. The appeal lacks merit. **Order;** The appeal is dismissed **Dated, Signed and Delivered Virtually at Eldoret this 29th day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**