https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11220

**Republic Of Kenya** **In The High Court Of Kenya At THIKA** **Criminal Appeal No. E041 of 2023** **Stephen Kamau Waithera………………………...……….………………..…….Appellant** **Versus** **Republic……………………………………………..……………………………Respondent** *(Being an appeal against the original conviction and sentence in Criminal Case number 1357 of 2018 of the Chief Magistrate’s Court at Gatundu by Hon. H.M Ng’ang’a (SRM) delivered on 30 January 2020)* **Judgment** **Background** 1. The Appellant, Stephen Kamau Waithera, was charged before the Chief Magistrate's Court at Gatundu in Criminal Case No. 1357 of 2018 with the offence of robbery with violence contrary to Section 295 as read together with Section 296(2) of the Penal Code. 2. The particulars of the offence were that on the 14th day of December 2018 at Mambo Yote Bar, Mukurwe Shopping Centre, Gatundu North Sub-County within Kiambu County, jointly with another not before court and while armed with dangerous weapons namely a knife and a panga, he robbed one Perpetua Mugure Gituro of one XTigi mobile phone valued at Kshs.10,000/=, ten (10) Kane Extra Spirit bottles valued at Kshs.2,000/=, a keg pump valued at Kshs.15,000/= and cash Kshs.34,000/=, all valued at Kshs.63,000/= and immediately before, during or immediately after the time of such robbery threatened to use actual violence upon the said Perpetua Mugure Gituro. 3. Upon a full trial, the Appellant was convicted and sentenced to serve thirty (30) years' imprisonment. Aggrieved by both conviction and sentence, the Appellant preferred the present appeal. 4. Subsequently, the Appellant filed Amended Grounds of Appeal dated 18 May 2026 challenging both the conviction and sentence on the following grounds: *a. That the learned trial magistrate erred both in law and fact by convicting the Appellant for the offence of robbery with violence contrary to Section 296(2) of the Penal Code whereas the prosecution failed to prove the essential ingredients of the offence beyond reasonable doubt.* *b. That the learned trial magistrate erred in law and fact by relying on contradictory and inconsistent prosecution evidence regarding the alleged use of dangerous weapons during the commission of the offence.* *c. That the learned trial magistrate erred in law and fact in relying on weak, unreliable and unsafe visual identification evidence under unfavourable conditions without adequately warning himself of the dangers attendant thereto.* *d. That the learned trial magistrate failed to appreciate that the alleged identification of the Appellant occurred at night and under circumstances that were not conducive to positive identification.* *e. That the learned trial magistrate erred in law and fact by relying on the testimony of witnesses who admitted to having consumed alcohol prior to the alleged identification, thereby rendering the identification evidence doubtful and unreliable.* *f. That the learned trial magistrate erred in law and fact by relying on dock identification and suggestive "show-up" identification procedures conducted at the police station contrary to established legal principles governing identification evidence.* *g. That the learned trial magistrate erred in law and fact by failing to find that no proper identification parade was conducted in accordance with the Kenya Police Standing Orders.* *h. That the learned trial magistrate erred in law and fact in invoking and relying on the doctrine of recent possession whereas the prosecution failed to establish exclusive possession of the alleged stolen phone by the Appellant.* *i. That the learned trial magistrate failed to appreciate that the premises where the alleged stolen property was recovered were jointly occupied by more than one person, thereby weakening the evidentiary value of the alleged recovery.* *j. That the learned trial magistrate erred in law and fact by failing to properly evaluate and consider the Appellant's defence before arriving at the conviction.* *k. That the learned trial magistrate shifted the burden of proof to the Appellant contrary to the provisions of Article 50(2) of the Constitution of Kenya and established principles of criminal law.* *l. That the learned trial magistrate erred in law and fact by convicting the Appellant on the basis of insufficient, inconsistent and uncorroborated evidence.* *m. That the learned trial magistrate failed to appreciate that the prosecution case was riddled with material gaps and contradictions which ought to have been resolved in favour of the Appellant.* *n. That the conviction was unsafe, against the weight of the evidence and occasioned a miscarriage of justice.* 1. The appeal was canvassed by way of written submissions. The Appellant relied on his submissions dated 18 May 2026 wherein he argued that the prosecution failed to prove the offence beyond a reasonable doubt; that the visual identification evidence was unsafe and made under unfavourable conditions; that no identification parade was conducted in accordance with the Kenya Police Standing Orders; that the doctrine of recent possession was improperly invoked as exclusive possession was not established; and that the trial court failed to consider his defence and impermissibly shifted the burden of proof. He consequently urged this Court to allow the appeal, quash the conviction and set aside the sentence. 2. The Respondent opposed the appeal through submissions dated 7 June 2026 and maintained that the Appellant was positively identified by recognition and visual identification; that the prosecution established all the ingredients of the offence of robbery with violence; that the Appellant was found in possession of the complainant's stolen mobile phone shortly after the robbery thereby attracting the doctrine of recent possession; and that the trial court properly evaluated the evidence and complied with Section 169 of the Criminal Procedure Code. The Respondent therefore urged this Court to dismiss the appeal and uphold both the conviction and sentence. **Evidence at Trial** 1. As a first appellate court, I am duty bound to evaluate all the evidence presented before the trial court afresh and to draw my own independent conclusions. This duty is, however, undertaken with awareness that I neither saw nor heard the witnesses testify first hand as stated in ***Okeno v Republic* [1972] EA 32**. 2. The prosecution called five (5) witnesses in support of its case. Upon being placed on his defence, the Appellant elected to give an unsworn statement and did not call any witnesses. 3. PW1, Perpetua Mugure Gituro, the complainant, testified that on 14 December 2018 at about 10.30 p.m., after closing her bar known as Mambo Yote Bar and while heading to her house nearby, she heard a motorcycle behind the bar. Two men who were riding the motorcycle called out her name and informed her that they wanted to drink. She testified that she recognized one of the men as a regular customer and identified him in court as the Appellant. At the time, she was in the company of Henry Mburu and David Muya. 4. PW1 testified that the two men insisted on being sold alcohol and she obliged by serving each of them a bottle of beer. She fetched the drinks from her house and served them outside where there were security lights. She declined their invitation to drink with them but sat between the two men as they consumed their drinks for approximately thirty (30) to forty (40) minutes. She stated that she subsequently lost consciousness and, upon regaining consciousness, found people chasing each other. She immediately proceeded to Mitero Police Post. 5. PW1 further testified that she discovered several items missing, namely, a keg pump, ten (10) Chrome Spirit bottles, ten (10) Kane Extra Spirit bottles, an X-Tigi V13 mobile phone, a Samsung E222 mobile phone, four padlocks with keys, her national identity card, an 8GB USB, a 4GB USB and cash. She maintained that she was able to identify the Appellant because she had been in his company for a considerable period and had known him prior to the incident. 6. Upon cross-examination, PW1 reiterated that she had spent between thirty (30) and forty (40) minutes with the Appellant on the material night and was therefore familiar with his face. She, however, stated that she did not see either of the assailants armed with a knife or a panga. 7. PW2, Henry Mburu, testified that on the material night at about 10.30 p.m., he was assisting the complainant, whom he referred to as Mary Mugure, to transport alcoholic drinks from the bar to her house together with one David Muya. He testified that two men arrived on a motorcycle and requested to purchase two bottles of Balozi beer. The men not only purchased beer for themselves but also bought drinks for him and David Muya. 8. PW2 testified that the complainant sat with the two men outside her house as they drank for approximately thirty (30) minutes before she suddenly collapsed. According to PW2, the Appellant then retrieved a panga from the motorcycle and proceeded towards the complainant's house where she had been cooking. He testified that the Appellant took a keg pump and thereafter opened the bar. It was his testimony that together with David Muya they raised alarm, whereupon the motorcycle struck a wall causing a knife and a panga to fall. 9. During cross-examination, PW2 testified that when the Appellant lifted the panga, he fled to a nearby house for safety. He maintained that although he had consumed alcohol that night, he was not intoxicated to the extent of being unable to understand or recall the events as they unfolded. 10. PW3, Police Constable Victor Sharuli (No. 83056), testified that on 15 December 2018, he received instructions from the DCIO Gatundu North, Inspector Simiyu, to proceed to Mukurwe Village where a robbery with violence had allegedly occurred at Mambo Yote Bar. He visited the scene and met the complainant. Subsequently, on 23 December 2018, acting on information received that one “Kamau”, who was suspected to have participated in the robbery, had been spotted at Igegania, he proceeded to the said location together with PC Langat. 11. PW3 testified that upon arriving at Igegania, they entered a room identified as Room No. 5 where they found the Appellant. Upon searching him, they recovered a mobile phone which was later identified by the complainant as the phone stolen from her during the robbery. 12. On cross-examination, PW3 maintained that the mobile phone was recovered from the Appellant's possession and confirmed that no identification parade was conducted during the investigations. 13. PW4, Nzambi Kamani, testified that on 14 December 2018 at approximately 11.30 p.m., she was inside the complainant's house when two men entered while armed with a knife and a panga. She identified the Appellant as the person who was wielding the panga. It was her testimony that the house was illuminated by normal electricity and that, out of fear, she allowed the two men to take whatever they wanted. She further testified that after the two men left, she found the complainant lying unconscious. She raised alarm and subsequently took the complainant to hospital. She also testified that her Tecno mobile phone, together with the complainant's phone, was stolen during the incident. 14. On cross-examination, PW4 maintained that she saw the Appellant clearly and could even recognize his voice as that of the individual who had threatened her with a panga on the material night. 15. PW5, Police Constable Gilbert Langat, the Investigating Officer, testified that on 15th December 2018, he received information regarding a robbery that had occurred at Mukurwe Centre. Together with PC Victor Sharuli, he visited the scene and interviewed the complainant. He testified that on 25th December 2018, he received information that the suspect had been spotted at his hideout in Igegania Centre. 16. PW5 testified he proceeded to the Appellant's residence together with PC Sharuli where they found the Appellant in the company of his girlfriend. Upon conducting a physical search, they recovered an X-Tigi mobile phone with a black cover. He stated that the phone was later positively identified by the complainant as one of the items stolen during the robbery. PW5 further testified that after arresting the Appellant, they escorted both him and his girlfriend to the police station where the complainant identified the recovered phone. The Appellant's girlfriend was thereafter released after identifying certain household items, namely a sub-woofer and a gas cooker, as belonging to her. The phone was produced as P.Exh. 1. The witness further testified that he visited the scene of the crime where he noted that although there was lighting, the same was poor. He produced a panga and knife as P.Exh 2 and 3, respectively. 17. On cross-examination, the witness testified that the panga and knife were at Mutero AP post with an AP officer and they had not been dusted for finger prints. 18. Upon the close of the prosecution's case, the trial court found that a prima facie case had been established and placed the Appellant on his defence. 19. In his defence, the Appellant gave an unsworn statement. He testified that on 23 December 2018, a friend visited him at about noon and requested to charge a mobile phone at his house. He stated that at about 12.30 p.m., Police Constables Victor and Langat arrived and arrested him. He informed the officers that the phone belonged to his visitor. The Appellant further testified that he and his visitor were escorted to Kamwangi Police Station. According to him, PC Victor demanded a bribe of Kshs.50,000/= from him, which he was unable to raise. He alleged that his companion paid the demanded amount and was consequently released. He further stated that he was compelled to record a statement and maintained that he had been falsely implicated in the offence. **Analysis and Determination** 1. Having considered the trial court record, the evidence and the grounds of appeal, the following are issues for determination: 2. Whether the prosecution proved the offence of robbery with violence contrary to Section 296(2) of the Penal Code beyond reasonable doubt. 3. Whether the sentence imposed by the trial court ought to be interfered with. 4. ***Whether******the prosecution proved the offence of robbery with violence contrary to Section 296(2) of the Penal Code beyond reasonable doubt.*** 5. The burden rested upon the prosecution to prove the offence beyond a reasonable doubt. The offence of robbery with violence is created under Section 296(2) of the Penal Code which provides: *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 the offence were set out in ***Oluoch v Republic* [1985] KLR** where the Court held that robbery becomes robbery with violence if any one of the following circumstances is proved: *a. The offender is armed with a dangerous or offensive weapon or instrument;* *b. The offender is in the company of one or more other persons; or* *c. Immediately before, during or immediately after the robbery, the offender wounds, beats, strikes or uses any other personal violence against the victim.* 1. It is now settled law that proof of any one of the foregoing ingredients is sufficient to sustain a conviction under Section 296(2) of the Penal Code. Before considering the foregoing ingredients, the Court must first satisfy itself that a robbery indeed occurred. 2. The evidence demonstrates that the complainant’s mobile phone was found in the possession of the Appellant and under the doctrine of recent possession the trial court found the Appellant liable for its theft. The circumstances of the theft are, however, hazy. It was the testimony of the witnesses that the complainant lost consciousness on the material evening when the alleged robbery occurred. The testimony of PW2 was to the effect that he was present and he saw the Appellant with a panga proceeding to the complainant’s house. PW4 also testified that she was inside the complainant’s house when she saw two men entering armed with a knife and a panga before they stole various items belonging to both her and the complainant. Considering the admission that the two witnesses who alleged to have witnessed the robbery and the fact of the Appellant being armed with weapons were consuming alcoholic drinks and further considering the time of day being night time, I am not satisfied that the evidence before the trial court demonstrated, beyond a reasonable doubt that the robbery was accompanied by any of the above stated ingredients of violence. 3. Furthermore, the evidence of PW2 and PW4 is put to doubt by the admission by the investigating officer that the complainant’s premises has poor lighting. It is also not clear the chain of custody of the alleged weapons that were produced before the trial court. The record only indicates that the same were handed over from the AP post. There was no direct link between the weapons and the robbery as they had not been dusted for finger prints. 4. Although the evidence before the trial court was that the complainant was rendered unconscious, there was no evidence led to explain the circumstances and whether the same was tied to the robbery. It is my considered view, therefore, that the evidence did not sustain a charge of robbery with violence. The conviction for the offence of robbery with violence is, hereby, set aside. 5. This court, however, has a duty to consider if the evidence proved a lesser offence being the offence of robbery under Section 296(1) of the Penal Code. Under that provision, one is liable upon conviction to a sentence of 14 years’ imprisonment. The ingredients of robbery must be proved with the exception of the violence aspect. 6. The principal evidence in this case was the recovery of the complainant’s mobile phone upon searching the premises of the Appellant. The Appellant was, therefore, found liable under the doctrine of recent possession. In ***Eric Otieno Arum v Republic [2006] KECA 385 (KLR)***, the Court of Appeal held that before the doctrine can be invoked, the prosecution must establish that the property was found with the accused person; that it belonged to the complainant; that it was stolen from the complainant; and that it was recently stolen. The court held that: *In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant.* 1. The evidence of PW3 and PW5 was unequivocal that upon the Appellant's arrest on 23 December 2018, approximately nine (9) days after the robbery, he was found in possession of an X-Tigi mobile phone. The complainant positively identified the phone as one of the items stolen from her during the robbery. More significantly, the record demonstrates that the IMEI number of the recovered phone corresponded with that provided by the complainant. On the issue of time when the stolen item was discovered, I am further guided by ***Eric Otieno Arum v Republic (supra)*** where it was stated: *The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.* 1. The Appellant's explanation was that an unnamed friend had visited him and left the phone at his residence for charging. However, he neither disclosed the identity of the alleged friend nor called her as a witness to corroborate his account. In the circumstances, his explanation remained a mere allegation incapable of displacing the presumption arising under the doctrine of recent possession. I therefore find that the learned trial magistrate properly invoked the doctrine of recent possession in this case. 2. The Appellant's principal challenge, however, concerns his alleged identification. He contends that the incident occurred at night under unfavourable conditions; that some of the witnesses had consumed alcohol; and that no identification parade was conducted in accordance with the Kenya Police Standing Orders. 3. The law regarding visual identification is rather settled. In ***Wamunga v Republic [1989] KLR 424,*** the Court of Appeal cautioned that evidence of visual identification in criminal cases must be examined with the greatest care, particularly where the prevailing conditions are difficult, in order to eliminate the possibility of mistaken identity. 4. Upon independently re-evaluating the evidence on record, I note that this is not a case involving the identification of a stranger. PW1 testified that she recognized the Appellant as one of her regular customers and had known him prior to the incident. She further testified that she sat with him and his accomplice for approximately thirty (30) to forty (40) minutes outside her house under security lighting as they consumed alcohol. 5. The Court of Appeal in ***Anjononi & Others v Republic [1980] KLR 59*** aptly observed that: *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. I adopt the foregoing reasoning. In the present case, PW1's evidence was one of recognition and not mere visual identification. The duration of interaction and the Appellant's status as a regular customer and the corroborative testimonies of PW2 and PW4 substantially diminish the possibility of mistaken identity. 2. The Appellant also faults the prosecution for failing to conduct an identification parade. However, where an accused person is recognized by witnesses who were previously acquainted with him, an identification parade serves no useful purpose. Consequently, I find that the failure to conduct an identification parade did not occasion any prejudice to the Appellant and does not render the conviction unsafe. 3. The Appellant further contended that the prosecution case was riddled with contradictions and inconsistencies. Having carefully examined the record, I do not discern any material contradictions capable of weakening the prosecution's case. The alleged inconsistencies principally relate to the exact manner in which the Appellant was identified and the sequence of events immediately preceding the robbery. The law is settled that not every discrepancy in the evidence of witnesses is fatal to the prosecution's case. In ***Richard Munene v Republic [2018] eKLR***, the Court of Appeal held that only substantial contradictions going to the root of the prosecution case would justify interference by an appellate court. 4. Applying the foregoing principles, I find that the inconsistencies complained of by the Appellant are neither substantial nor fundamental and did not occasion any prejudice to him. They do not, in my view, displace the otherwise cogent and consistent evidence tendered by the prosecution witnesses. 5. The Appellant also contended that the trial court failed to consider his defence and thereby shifted the burden of proof contrary to Article 50(2) of the Constitution. The Appellant's defence was that the recovered phone belonged to a friend who had visited him shortly before his arrest and that he had been falsely implicated after declining to pay a bribe allegedly demanded by the police officers. 6. I have carefully considered the impugned judgment and I am satisfied that the learned trial magistrate properly considered the Appellant's defence before rejecting it. The defence did not displace the prosecution's evidence of recognition, the recovery of the complainant's phone from the Appellant's possession or the evidence placing him at the scene of the crime. 7. I equally find no merit in the Appellant's contention that the learned trial magistrate contravened Section 169 of the Criminal Procedure Code. The judgment identifies the charge, summarizes the evidence tendered by both parties, sets out the issues for determination and provides reasons for the ultimate findings reached by the trial court. I am therefore satisfied that the requirements of Section 169 of the Criminal Procedure Code were fully complied with. 8. Having carefully re-evaluated and re-analyzed the entirety of the evidence on record, I am satisfied that the prosecution proved beyond reasonable doubt that the Appellant is liable for robbery against the complainant. I am further satisfied that the Appellant was positively recognized by PW1 and PW4 and that such recognition was independently fortified by the doctrine of recent possession. 9. In the circumstances, I find the Appellant liable for the offence of robbery under Section 296(1) having set aside the conviction for the offence of robbery with violence. 10. ***Whether the sentence imposed was lawful*** 11. Having found as I have that the offence of robbery with violence was not proved rather the offence of robbery was proved, I am obliged to re-evaluate the sentence imposed by the trial court. Under Section 296(1) of the penal Code, a person found guilty of the offence is liable to imprisonment for a term not exceeding 14 years. 12. I have carefully considered the circumstances surrounding the commission of the offence as well as the Judiciary Sentencing Policy Guidelines which underscore that sentencing should be proportionate to both the gravity of the offence and the culpability of the offender while at the same time advancing the objectives of punishment, deterrence, rehabilitation, restorative justice, community protection and denunciation. Further, Section 333 (2) of the Criminal procedure Code provides as follows: *Subject to the provisions of section 38 of the Penal Code (*[*Cap. 63*](https://new.kenyalaw.org/akn/ke/act/1930/10)*) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.* *Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.* 1. The record of the trial court demonstrates that the Appellant was arrested on 23December 2018 and presented before the trial court on 24 December 2018. It is further apparent from the proceedings that he remained in custody throughout the trial until his conviction and sentencing on 30 January 2020. This Court is therefore enjoined by Section 333(2) of the Criminal Procedure Code to take into account the period spent in pre-sentence custody. 2. Taking into account the circumstances of the offence, the mitigating factors on record and the objectives of sentencing as espoused in the Judiciary Sentencing Policy Guidelines, I hereby re-sentence the Appellant to a custodial sentence of 8 years’ imprisonment which sentence shall run from 24 December 2018, being the date the Appellant was first presented before court and remanded in custody. Considering that the Appellant has been in custody for more than seven (7) years, I am satisfied that the objectives of punishment have been met. He shall be set free henceforth unless lawfully held. **Judgment Dated and Delivered Virtually this 23rd day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Nabil M. Orina** **Judge** **In the presence of:** ***The Appellant logged in through Microsoft Teams from Prison*** ***Linda – Court Assistant***