https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1656

Mochana v Republic (Criminal Appeal E040 of 2025) [2026] KECA 1656 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1656 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal E040 of 2025 JM Mativo, PM Gachoka & BM Kairaria, JJA July 31, 2026 Between Stephen Mutai Mochana Appellant and Republic Respondent (An appeal from the judgment of the High Court of Kenya at Kericho (M. Ngugi, J.) delivered on 29th March 2017 in HCCRA No. 41 of 2015 Criminal Appeal 41 of 2015 ) Judgment 1.The appellant, Stephen Mutai Mocahana, 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 of the offence were that on 14th June 2014, at Morgan Estate in Kericho Township within Kericho County, jointly with others not before the court, while armed with an offensive weapon namely a panga, the appellant robbed John Kiprono Tonui cash Kshs. 20,000.00, iPhone make 4S, valued at Kshs. 30,000.00, and immediately after the time of such robbery, wounded John Kiprono Tonui. 2.The appellant was arraigned before the Chief Magistrate’s Court at Kericho, Criminal Case No. 2202 of 2014 where he pleaded not guilty to the offence. After a full trial, the appellant was convicted as charged on 2nd September 2015. He was subsequently sentenced to death. 3.The appellant was aggrieved by those findings. He appealed before the High Court sitting at Kericho, HCCRA No. 41 of 2015. In her judgment dated 29th March 2017, Mumbi Ngugi, J., (as she then was) dismissed his appeal on conviction and sentence. 4.The appellant is dissatisfied with those findings, hence this appeal. He filed his notice of appeal and an undated memorandum of appeal. 5.We heard the appeal virtually heard 25th March 2026. The appellant, who was present, was represented by Learned Counsel Ms. Mwira. On the part of the respondent, Prosecution Counsel Mr. Rutto was present. The appeal was heard on the basis of the parties’ written submissions that were orally highlighted. 6.On her part Ms. Mwira filed written submissions, a list and bundle of authorities and a case digest, all dated 20th March 2026. We note that in the submissions the appellant addressed two issues only: that the appellant’s right to a fair trial was greatly prejudiced as he was not provided with free legal representation and thus violating Article 50 of the Constitution and that the sentence was harsh and excessive. 7.On the first ground, the appellant submitted that he was gravely prejudiced during his trial, as he was not given free legal representation thus his right to a fair trial enshrined in Article 50(2) of the Constitution was violated. Citing the cases of Douglas Kinyua Njeru vs. Republic [2015] eKLR and David Njoroge vs. Republic [2011] eKLR, the appellant submitted that substantial injustice is subjected to individuals who undergo a trial in which the mandatory sentence is death without legal representation. 8.The other ground that was raised by the appellant is that the identification parade was not conducted in line with the law and that he raised the objection when signing the parade form. 9.Turning to the sentence meted out to the appellant, counsel submitted that it was harsh, excessive and failed to take into account the mitigating factors furnished by the appellant. Citing the locus classiucs Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, the appellant submitted that mandatory sentences treated offenders as faceless, undifferentiated mass to be subjected to blind infliction of the death penalty. The appellant beseeched this Court to consider the principles enshrined therein so as to exercise its discretion in granting a lesser sentence, should the conviction be upheld. She prayed that the appeal be allowed. 10.Mr. Rutto, on his part, filed written submissions, a list and bundle of authorities, and a case digest, all dated 13th March 2026 to submit that the prosecution discharged its burden of proof, being beyond reasonable doubt, that the appellant committed the offence that he was charged with. On the appellant’s identification as the assailant, counsel submitted that although the offence occurred when it was dark, the appellant had bright torches and the identifying witnesses were able to see him very well. Further, the appellant’s defence was considered and rightly rejected. Finally, he submitted that the sentence given to the appellant was lawful and should not be disturbed. For those reasons, counsel prayed that the appeal be dismissed with costs. 11.This is a second appeal. This Court in Boniface Kamande & 2 Others vs. Republic [2010] eKLR, enunciated our role in the following words:“On a second appeal to the Court, which is what the appeals before us are, we are under legal duty to pay proper homage to the concurrent findings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satisfied that there was no evidence at all upon which such findings were based or if there was evidence, that it was of such a nature that no reasonable tribunal could be expected to base any decision upon it.” 12.This Court in Johana Ndungu vs. Republic [1996] eKLR considered the ingredients to a charge of robbery with violence that must be proved by the prosecution to sustain a conviction, in the following words:“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved will constitute the offence under the subsection:1.If the offender is armed with any dangerous or offensive weapon or instrument; or2.If he is in company with one or more other person or persons; or3.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.” 13.In line with our duty as a second appellate court, the main issue for determination in this appeal is whether we are entitled to interfere with the findings of the two courts below on grounds that the two courts below considered matters that should not have been considered or, failed to consider matters that they should have considered or, that looking at the evidence they were plainly wrong or perverse. 14.In the analysis of the evidence adduced, both courts found that from the evidence, PW2 Beatrice Tanui, the complainant’s wife, was the only one in a position to participate in the identification parade as she had the longest physical close contact with one of the suspects. Her evidence was that they were attacked at their home when she was asleep with her husband at midnight. It was her evidence that the attackers shone torch lights as they harassed and ransacked the house. 15.According to PW2, she was in close proximity to one of the culprits who ordered her to send money via Mpesa to a certain number. She was also ordered to give him money from her bag, where she stayed close to the offender and could see him properly. It was her evidence that the appellant was issuing orders to the others for close to 45 minutes, who were armed with cutters and pangas. She stated that having been close to the appellant, she was able to identify him in the identification parade. 16.PW2’s evidence was corroborated with that of her husband, PW1, the complainant, who added that the attackers further demanded ATM cards from them. PW1 was, however not close to them. In spite of them having torch lights, he could not properly identify the suspects. He later discovered that they also went away with his iPhone and the house girl’s Samsung phone and the wristwatch. That in attempts to stop the attackers, PW1 jumped on one of the robbers who stood near the bedroom door and a scuffle ensued. In the process, PW1 was cut on the head with a panga. It was when PW2 and the house girl raised an alarm that the robbers ran away and vanished. 17.The two courts below were of the view that while the incident occurred at night, the light from the torch lights, coupled with the duration of the incident, was sufficient enough to have one of the culprits positively identified at the crime scene. 18.On the identification parade, which was also a ground raised by the appellant in this appeal, the identification report shows that the identification parade was held on 23rd February 2014. However, the courts were satisfied that the same was conducted on 23rd July 2024 and not 23rd February 2014 as recorded. The investigating officer was recorded as Corporal George Maitha. The parade was conducted by IP Mohamed who testified as PW2. 19.The two courts found no reason to fault the identification parade altogether. In their concurrent findings, the identification parade properly conformed with the law. In this appeal, the appellant urged this Court to consider the fact that he raised an objection with the identification parade. It is instructive to note that this issue was never raised at the first appellate court rendering it an afterthought. We have carefully considered the record of appeal and the identification form that was adduced in evidence. The appellant signed the parade form, and it is written as follows on the section for the suspect to state why he is not satisfied with the parade… “not satisfied because she identified me. The suspect had no good reason to raise” Just like the two courts below, we agree that that was not a sufficient ground to question the credibility of the identification parade. The evidence in totality pointed to a finding of guilt against the appellant, who was positively identified as a perpetrator of the offence by PW1. 20.On the appellant’s sentence, section 296 (2) of the Penal Code condemns a convicted person to the death penalty. Though the appellant persuaded us to consider the holding in Muruatetu case (supra), it was clarified by the Supreme Court, in Muruatetu 2, that the principles enunciated therein were only applicable in murder cases. Furthermore, the Supreme Court of Kenya has since clarified in the case of Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) that mandatory sentences are lawful and cannot be interfered with. We are therefore unable to interfere with the sentence which as passed by the trial court, was legal. 21.For the above reasons, we find no reason to interfere with the findings of the two courts below on conviction and sentence. Accordingly, the appellant’s appeal is dismissed.It is so ordered. DATED AND DELIVERED AT NAKURU THIS 31ST DAY OF JULY, 2026.J. MATIVO....................................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.....................................JUDGE OF APPEALMURUNGI B. KAIRARIA...................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR