https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12951

Mutunga v Republic (Criminal Appeal E015 of 2025) [2026] KEHC 12951 (KLR) (18 August 2026) (Judgment) Neutral citation: [2026] KEHC 12951 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E015 of 2025 FN Kyambia, J August 18, 2026 Between Stephen Kimeu Mutunga Appellant and Republic Respondent (Appeal from the judgment of the Kaloleni Principal Magistrate’s Court (Hon. R.M Amwayi PM) dated 20{{^th}} January, 2025 in Criminal Case No. E125 of 2024)) Judgment 1.Stephen Kiemu Mutunga, the appellant herein, was charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars were that on 18th day of May, 2024, at General Mills in Kokotoni area within Rabai Sub County in Kilifi County, jointly with others not before court robbed George Omondi and Bhanderi Devshi Karsan Kshs. 433,000/= (four hundred and thirty-three thousand shillings) and immediately before such robbery shot at George Omondi and Bhanderi Devshi Karsan that resulted to the death of George Omondi. The appellant pleaded not guilty the charge. After hearing, the appellant was found guilty and was sentenced to forty (40) years imprisonment. 2.PW1 Devshi Karsan Bhanderi stated that on 18th May, 2024 at around 10.00am together wit George Omondi (deceased) proceeded to Mariakani DTB Bank to withdraw money to pay workers. They withdrew the money and proceeded back to the site. Upon getting to the gate, they heard gunshots. PW1 closed his eye. When he eventually opened his eyes he found the door of the vehicle they were using open. He jumped out of the vehicle and ran and hid himself in the store. It is when he was at the store that he noticed he was bleeding from both legs and left wrist and the right thumb. He was rushed to Mariakani Hospital for first aid and later referred to Pandya Hospital. He later learned that George Omondi was also injured and he succumbed to the injuries. During the incident the money they had withdrawn was stolen. PW1 confirmed that he did not identify the robbers. 3.PW2 stated that on the material date he was at work at Kokotoni site where he had been assigned work near the gate. He said while doing his work he saw a person wearing yellow T-shirt with black stripes pass by and then came back. After a short while he heard gunshots. He saw the person in yellow t-shirt shouting at George Omondi. The shots persisted and he saw the attackers smash the window of the vehicle. PW2 stated that the person who was shooting had covered his face with a handkerchief concealing his lower face from the nose to mouth. The only visible part was part of the eyes and head. He stated that another person who was armed with knife came to the scene and threatened Omondi. The attackers ran out of bullets and they ran away from the scene. He was not able to identify the attackers. 4.PW3 was also at the site during the attack. He was in the office when he saw one Ben Kitonga pass by his office running. He went out to check what was happening. He found people running from the gate screaming that there were thieves. He then saw PW1 bleeding from the legs and hands. He went to the vehicle and found Geroge Omondi on the steering wheel bleeding from the face and was not moving. He took them to hospital where George Omondi was pronounced dead. He confirmed that he did not see the attackers. 5.PW4 a security guard at the site told the court that on the material date he was at work. At around 11.30am Geroge Omondi, PW1 and another person left the site in a vehicle. He locked the gate. When they came back they hooted and he opened the gate. He noticed that the vehicle had carjacked by three people with one of them armed with a gun. He was threatened by the one with the gun that he will shoot him if he opens the gate. The attackers had concealed their faces from the eyes downwards. He ran back to the yard. He then heard gunshots. He went and hid himself until the gunshots were no more. When he went back to the gate he found George Omondi having died. He also told the court that he was not able to identify the attackers. 6.PW5 Alex Mwandawiro a ballistic expert testified that on 27th May, 2024 he received exhibits via exhibit memo. The exhibits were one expended cartridge marked A, one fired bullet jacketing marked B1, one bullet core marked B2 and one fired bullet marked C. Upon examination he found that the one expended cartridge was in caliber of 9x19mm and was formerly component of a 9x19mm round of ammunition. He also found that the gun which was used to fire the expended cartridge marked A was the also involved in another shooting crime incident appertaining to DCI Kisauni vide Kiembeni Police station OB 02/341/2024. Further examination revealed that the expended cartridge was fired in CZ85B (Ceska) pistol S/NO. 4151. He further compared B1 and C with test bullets that he fired in the pistol and made an opinion that the same were fired form Ceska Pistol C285 (G4151). He prepared a report which he produced in court as exhibit. 7.PW6 Senior Sergent Benard Changwon attached at Bamburi police station testified that on 8th August, 2024 at around 2.00pm he was on duty when he received a call from an informer that there was a person in a club threatening to shoot members of the public. Together with his colleagues he proceeded to the club. He contacted the informer who came out of the club. Shortly he was followed by another person whom the informer told them that he was the one who was threatening to shoot members of the public. They immediately arrested him and upon a quick search they recovered a pistol hoisted on the left side of the hip. The pistol was loaded with four bullets in the magazine with one bullet ready for firing. They escorted the suspect to the police station. At the station a thorough search was conducted and an inventory was prepared. The recoveries were a Ceska pistol G4151, one magazine, five rounds of ammunition, identity card, receipt from Buscar Bus, a phone Itel IMEI 350343501775209. The inventory was signed by himself, PC Pola Kalama and the accused who signed and thumb printed it. He said the suspect was charged at Shanzu Law Courts. He further stated that the person they arrested was the accused herein. 8.PW7 Dr. Ngari Mbooko a pathologist conducted postmortem on the body of George Omondi Miyawa which was brought by officers from Rabai Police Station. The body was blooded. The body had perforation on the color and right chest. The body had bullet wound on the right side of the neck exiting on the left side of the neck. There was also entry of bullet to the posterior and exterior. The bullet went into the chest, broke his ribs and lodged into the right shoulder. There was also bullet which broke the trachea and blocked the airwaves. As a result, he concluded that the cause of death was asphyxia due to airwave exclusion by blood following bullet injury to the throat. He produced the report as an exhibit. 9.PW8 Corporal Josephat Wafula attached to DCI Headquarters, Coast Region received a phone call from CID Yano who informed him of a shooting incident at Kokotoni. They went to the scene where they recovered pieces of glasses of a vehicle window, empty cartridge which he photographed before picking it. He interrogated the people at the scene and a security guard at the site narrated to him how the incident occurred. He proceeded to Mariakani Sub County Hospital where the victims of the shooting had been taken. They found that George Omondi had died and the other victim was undergoing treatment. The body of George Omondi was transferred to Jocham Hospital for postmortem to ascertain the cause of the death. The other victim was later taken to Pandya Hospital where he was admitted. After the surgery a bullet head was recovered and the same was handed over to him as an exhibit. At Jocham Hospital two bullets were recovered from the body of George Omondi. He forwarded the recovered bullets to DCI Headquarters for forensic examination to ascertain the gun which fired the bullets and type of bullets. He also wanted to ascertain if the spent cartridge and bullet heads recovered at the scene of the shooting were fired by one gun. He later received a report from PW5 confirming that the bullets and spent cartridges were fired by one firearm a Ceska Pistol G4151. It was also revealed that the firearm had been used to commit crime in Kiembeni vide OB 2/10/6/2024 at Bamburi. In the course of investigations, he confirmed that the victims herein had been robbed money which they had withdrawn from the bank to pay workers. He produced bank statements as exhibits. He confirmed that the people he found at the scene did not tell him who were the attackers but only that they were three. 10.At the close of the prosecution’s case, the appellant was found to have a case to answer and was put on his defence. He was explained his right under Section 211 of the Criminal Procedure Code. He opted not to adduce evidence in his defence. 11.In her judgment, the learned trial magistrate analyzed the evidence adduced by the prosecution. She appreciated that it is the duty of the prosecution to prove the charges against the accused beyond reasonable doubt. The learned trial magistrate further appreciated the essential ingredients of the offence of robbery with violence and found that from the evidence adduced, the same were disclosed as required. In doing so she found that the victims herein were injured with one of them sustaining fatal injuries. She also found that the victims were attacked by more than one person who were armed with a firearm which is a dangerous weapon. She also found that money was stolen from PW1 and the deceased. The trial learned magistrate further found that the firearm which was used to commit the crime was traced to the appellant which the appellant did not challenge as he did not offer any explanation in his defence. She concluded that the evidence linking the appellant with the offence was purely circumstantial and it pointed to the guilt of the appellant. 12.Dissatisfied with the decision, the appellant lodged this appeal before the High Court challenging the decision of the learned trial magistrate on the grounds that the trial magistrate failed to consider that the circumstances which governed the scene of crime were not conducive to offer an opportunity for positive identification; that the learned trial magistrate erred in law and fact for not considering that the recovery of the gun was founded on evidence discordant to link the appellant with the occurrence of the crime; that the trial court erred in law and fact for not noting that the investigations were frivolous to reveal the true aspect of the case; that the trial magistrate erred in law and fact for failing to consider that the onus of prove was on the prosecution; that the trial court failed to consider that the preparation of the inventory was biased as to its process; and finally, the trial court failed to consider the appellant’s defence. In short the appellant contended that the charges were not proved beyond reasonable doubt as required. 13.The appeal was heard by way of written submissions. The appellant’s submissions are undated whereas the respondent’s submissions are dated 5th May, 2026. 14.The appellant first submitted that none of the witnesses identified the attackers though the incident is said to have happened during the day. Therefore, there was no positive identification of the persons who attacked the complainant and the deceased. 15.Further the appellant argued that the recovery of the pistol which is alleged to have been used in the commission of the crime was not within the measurable distance from the scene of crime to where it was recovered. In essence the appellant argue that the pistol was recovered in Kisauni whereas the offence was committed at Kokotoni. The appellant further questioned how the alleged gun was recovered stating that the person who gave information about the same was never called to testify neither any member of the public who witnessed the recovery of the same from the appellant. 16.The appellant further submitted that if the gun was recovered from him immediately after the arrest why would the police conduct another search at the station begging the question how many guns were recovered. Is it at the scene of arrest or at the station? The appellant also challenged the prosecution evidence as to the serial number of the recovered weapon which was contradictory with one version indicating that the recovered gun was serial number 4141 and the other as 4151. 17.The appellant further challenged the evidence of the recovery of the gun submitting that the gun is said to have been recovered on 8th August, 2024 and that he was arraigned in court on 22nd August, 2024 whereas the crime was committed on 18th May, 2024. He also submitted that according to the records at Bamburi police station which links the gun to crime was made on 10th June, 2024. According to the appellant there was contradiction as to when the weapon allegedly used in the crime in this case was recovered. Further there was contradiction as to which pistol was taken for ballistic analysis in view of the contradictory serial number of the allegedly recovered firearm. 18.In opposition to the appeal the respondent submitted that the appellant was positively identified as per the evidence adduced and especially the recovery of the gun which was used to commit the offence which was recovered from the appellant. It is the respondent’s submissions that the synopsis of the evidence leading to the recovery of the pistol, the recovery of the spent cartridges and the ballistic analysis linking the recovered spent cartridges to the pistol recovered from the appellant links the appellant with the offence herein. 19.The respondent further submitted that at no time did the prosecution shift the burden of proof to the appellant. It is also submitted that the appellant having failed to give his defence, there was no defence for the trial court to consider. 20.I have considered the grounds of appeal and the evidence adduced before the trial court. I have equally considered the respective submissions by the appellant and the respondent. This being the first appeal before this court, and as held in the case of Okeno vs Republic (1972) E.A 32 this court is enjoined to undertake fresh and exhaustive evaluation of the evidence adduced before the trial court and reach my own decision. Of course, this court cannot overlook the fact that it did not have the advantage of seeing or hearing the witnesses testify before the trial court. 21.The appellant was charged with the offence of robbery with violence. The offence robbery with violence is created under Section 295 and 296(2) of the Penal Code which provides as follows:“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(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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 22.These provisions were considered in the case of Johana Ndungu vs Republic (1996) KECA 187 (KLR) where the Court of Appeal held 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. The essential ingredient of robbery under section 295 is use or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery is presupposed in three sets of circumstances prescribed in S. 296(2) which we give below and any one of which if proved will constitute the offence under the sub-section: 1.If the offender is armed with a 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.” 23.Having examined the record and re-evaluated the evidence adduced before the trial court, the fact that PW1 and Goerge Omondi deceased, were robbed and in the process PW1 sustained injuries and the Goerge Omondi died is not contested. It is also not in contest that the attackers were more than one and were armed with a firearm which is a dangerous weapon. It is also not in contests that money was stolen from PW1 and the deceased. As indicated in the above cited decision of the Court of Appeal, all the ingredients of the offence of robbery with violence were disclosed. 24.What is in contest in this appeal is whether it is the appellant whether with others who committed the offence. It is not in doubt that the conviction of the appellant was based on circumstantial evidence. It is also appreciated that a charge may be sustained based on circumstantial evidence, certain threshold must be met if the conviction is to be based on such evidence. The Court of Appeal and the High Court has restated the threshold that circumstantial evidence must meet. Suffice to cite the case of Sawe vs Republic (2003) KLR 364 where the Court of Appeal held as follows:“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory fact must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.” 25.In the case of Abanga alias Onyango vs Republic Cr. Appeal No. 32 of 1990 (UR) the court set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction in the following terms:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: 1.the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2.those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; 3.the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 26.In the instant case the circumstances linking the appellant with the offence herein were that the appellant was arrested and found with a firearm which was used in the commission of offence of robbery with violence. It was the evidence of PW6 that when the appellant was arrested he was found with Ceska pistol S/No. G4151. PW8 during investigations he recovered spent cartridges at the scene of the crime. He further recovered bullets in the body of George Omondi during postmortem and also from PW1. These spent cartridges and the recovered bullets were forwarded to PW5 who upon forensic analysis found that they were fired from Ceska pistol recovered from the appellant when he was arrested. The appellant unfortunately did not give any defence which would have informed the court on the circumstances in which he was found with the firearm. 27.It is imperative to set out what Section 111(1) and 119 of the Evidence Act provides:“111(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of, proving any fact, especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by the evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exists:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence. 28.Section 119 provides:“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the fact of the particular case.” 29.In this case as I have stated hereinabove, the appellant when placed on his defence opted to remain silent. Much as the burden of proof remains with the prosecution to prove the case against an accused person beyond reasonable doubt, failure by the appellant to explain how he was found with the firearm which was used to commit the offence left the circumstantial evidence given by the prosecution unbroken. It was clear that the spent cartridges which were recovered from the scene of the crime were forwarded for forensic analysis. They were found to have been fired from the firearm which was recovered from the appellant upon arrest by PW6. I find such circumstantial evidence cogent and points at the appellant as one who committed the offence with others. I say so because the appellant did not deny these set facts. 30.The appellant alluded to contradiction as to the date when the firearm is alleged to have been recovered as well as the serial number of the said firearm. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR the Court of Appeal cited with approval the Ugandan case of Twahangane Alfred vs Uganda (2003) UGCA on contradictions and held:“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 necessary lead to the evidence of 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.” 31.In the instant case the contradictions alluded to by the appellant looked at against the evidence adduced by the prosecution do not disapprove the evidence adduced by the prosecution. Regarding the contradiction in the serial number of the firearm, the same was explained that it was a typing error. I have no reason to doubt that because what was forwarded to PW5 for examination was Ceska S/No. G4151. It is also not in dispute that the appellant was found with the said firearm after the commission of the offence in this case. 32.In the circumstances of this case, I find that there was cogent circumstantial evidence linking the appellant with the offence of robbery which was committed on 18th May, 2024 and I have no reason to disturb the finding of the trial court on conviction. 33.The appellant was sentenced to serve forty (40) years imprisonment. The sentence provide for the offence of robbery with violence is death sentence. 34.The sentence meted on the appellant considering the circumstances of the offence where one of the victims lost his life is sufficient and I have no reason to disturb the same. 35.The upshot is that the appeal has no merit and the same is dismissed and the finding of the trial court both on conviction and sentence is hereby upheld. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF AUGUST, 2026.FRANCIS KYAMBIAJUDGE OF HIGH COURT.