https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6601

Tsuma & another v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 6601 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 6601 (KLR) Republic of Kenya In the High Court at Voi Criminal Appeal E043 of 2025 AN Ongeri, J May 12, 2026 Between Salim Mukisa Tsuma 1st Appellant Benjamin Ndoro Joto 2nd Appellant and Republic Respondent (Being an appeal from the Conviction and Judgment of Hon. A. M. Obura (CM) in Voi CMCCR Case No. 629 of 2022 delivered on 1st July 2025) Judgment 1.The two Appellants together with another who was the first Accused Person who absconded court since 24th September 2024 were charged with robbery with violence contrary to Section 295 as charged with Section 296(2) of the Penal Code. 2.The particulars of the charge were that on the night of 7th and 8th September 2022 along Mombasa – Nairobi Highway at Manyatta Area within Voi Sub-County, the two Appellants jointly with another not before court robbed Gabriel Chengo Karisa of a truck registration number KCJ xxxS/ZE xxx Axor loaded with 28 tonnes of maize and 800 litres of diesel the property of Amana Destiny Roadways Services Ltd and two mobile phones (neon registration worth Kshs. 5,000 and Nokia worth Kshs. 8,000 and Mpesa Kshs. 5,000 the property of Gabriel Chengo Karisa all valued at Kshs. 7,745,760/= and during such robbery killed the said Gabriel Chengo Karisa. 3.The Appellants pleaded not guilty and they were represented at the trial by Mwawasi Advocate. 4.The prosecution evidence was that the deceased who was the driver of motor vehicle registration number KCJ xxxS/ZE xxx Axor left Kipevu at the Port of Mombasa with the said motor vehicle on the night of 7th and 8th September 2022. 5.The deceased was found dead in the said motor vehicle at Manyatta Area along Nairobi – Mombasa road. The maize consignment was intact but his personal effects were missing. 6.Shortly thereafter in the same month of September 2022, PW7 JOseph Mwadule received a Neon Ray mobile phone from the 1st Accused. 7.PW7 was confronted on 5th October 2022 following police investigations and he is the one who led police to the arrest of the 1st Accused Person. 8.The 1st Appellant in this case was also traced through one Nadzua Nyiro who was found using the deceased’s second phone. 9.The said Nadzua Nyiro led police to the 1st Appellant and the 1st Appellant led police to the 2nd Appellant. 10.The 1st Accused Person in the trial court, Hamisi Kazungu Mugaza absconded when the three of them were put on their defence. 11.The 1st and 2nd Appellants who were the 2nd and 3rd Accused during the trial denied the charges and said in their defence that they did not the deceased or the vehicle he was driving. 12.The 1st Appellant said he was arrested for no apparent reason and the 2nd Appellant also claimed his co-accused were strangers to him. He said he stays at Taru and that one morning police visited him and when he identified himself they escorted him to the police station and he was charged. 13.The trial court found the Appellants guilty as charged and sentenced them to death. 14.The Appellants have appealed to this court on the following similar grounds of appeal:-i.That the learned trial Magistrate erred in law and in facts by failing to appreciate that the investigation that was done in this matter was shoddy.ii.That the learned trial magistrate erred in law and in fact by failing to find that the defense of the appellants as was stated did exonerate them from the scene of the crime.iii.That the sentence imposed was harsh and excessive since it was applied in mandatory terms. 15.The parties filed written submissions as follows:- The 1st appellant submitted that he was challenging his conviction and death sentence for robbery with violence. 16.He argues that the trial court erred by relying on the doctrine of recent possession based on a mobile phone that was not satisfactorily identified as belonging to the deceased. 17.No purchase receipt or serial number (IMEI) was produced to prove ownership, and the phone itself was only marked for identification but never formally admitted as an exhibit. 18.The investigating officer, who allegedly had key information linking the phone to the deceased, did not testify, which the appellant contends was fatal to the prosecution’s case under section 150 of the Criminal Procedure Code. 19.The appellant emphasizes that without direct eyewitnesses, the case was purely circumstantial, and the doctrine of recent possession was improperly applied because the prosecution failed to prove the phone was stolen, belonged to the deceased, or was recently possessed. 20.He further submitted that his explanation, that the phone was given to him by a co-accused, was reasonable and should have exonerated him, or at least only supported a lesser charge of handling stolen goods under section 322 of the Penal Code. 21.Citing several authorities, he argues that each link in the chain of evidence must be tested, and missing links, such as the unproduced phone and absent investigating officer, mean the conviction cannot stand. 22.He therefore prays that the appeal be allowed, the conviction quashed, and the sentence set aside. 23.The Respondent stated in its submissions that the trial court’s conviction and death sentence against the two appellants should be upheld. 24.The prosecution maintains it proved the offence of robbery with violence beyond reasonable doubt through six witnesses. 25.PW1, the deceased’s employer, identified the body at the crime scene, while PW2 and PW3 confirmed the post-mortem findings. 26.PW6 produced the post-mortem report showing death resulted from asphyxia due to strangulation and multiple stab wounds. 27.PW4 testified that the deceased’s two mobile phones were missing, but tracking the IMEI number and SIM card led to the first appellant, who then led to the second appellant within a month of the offence. 28.Neither appellant gave a reasonable explanation for possessing the deceased’s phone, thereby failing to rebut the doctrine of recent possession. 29.On sentence, the submissions cite the Judiciary Sentencing Policy Guidelines and clarify that the Muruatetu II decision applies only to murder cases, not robbery with violence, for which death remains mandatory under Section 296(2) of the Penal Code. 30.The Respondent therefore prays that the appeal be dismissed and the trial court’s judgment upheld. 31.The following are the issues identified for determination in this appeal;i.Whether the prosecution proved the charge of robbery with violence beyond reasonable doubt;ii.Whether the doctrine of recent possession was correctly applied in this case; andiii.Whether the death sentence imposed on the appellants is lawful and constitutional. 32.The Appellants were convicted of robbery with violence, an offence that carries a death sentence under Section 296(2) of the Penal Code. In this case, the prosecution's backbone was the doctrine of recent possession, which allows a court to infer that a person found in possession of recently stolen property is either the thief or the guilty receiver, unless they can provide a reasonable explanation. 33.The Appellants challenged this on the grounds that the phone recovered from them was never formally admitted as an exhibit and lacked proper identification, such as a serial number or purchase receipt. 34.For the doctrine of recent possession to apply, the prosecution must prove beyond reasonable doubt that the property was stolen, that it was found with the accused, and that the possession was so recent that no other conclusion but guilt can be drawn. 35.While the Appellants point to the absence of the investigating officer and the lack of a purchase receipt, the court notes that the identification of the deceased’s phone was corroborated by PW4 and the subsequent chain of arrests, where the first accused led to the first appellant, who then led to the second. 36.This "bloodhound" trail of evidence is a strong circumstantial link that the trial court was entitled to rely upon. 37.Where property is not uniquely identifiable by a serial number, the surrounding circumstances and the accused's inability to provide a credible explanation for possession can suffice to sustain a conviction. 38.The Appellants' defence that the co-accused were strangers or that the phone was a gift was found to be an afterthought and lacked the ring of truth given the timeframe of the recovery, within a month of the violent robbery and murder of the driver. 39.Regarding the sentence, the Appellants argued that the death penalty was applied in mandatory terms. 40.In this instance, the robbery was accompanied by the brutal killing of the driver, Gabriel Chengo Karisa, by strangulation and stabbing. 41.Such aggravating factors, loss of life and the violent nature of the crime, justify the harshest penalty even when discretion is exercised. 42.Consequently, the facts of this case, involving a cold-blooded murder during a robbery, fall squarely within the category of "the rarest of rare cases" where the maximum penalty is warranted. 43.The evidence placed the Appellants in possession of the deceased's personal effects shortly after his demise, and they failed to rebut the presumption of guilt. 44.For these reasons, the conviction is safe, and the sentence remains appropriate given the gravity of the circumstances. 45.The appeal is hereby dismissed. 46.Orders to issue accordingly. DATED, SIGNED AND DELIVERED THIS 12TH DAY OF MAY 2026 VIRTUALLY AT VOI HIGH COURT.ASENATH ONGERIJUDGEIn the presence of:-Court Assistant: Millicent/MabishiState Counsel: Miss KanyuiraAppellants: Present Virtually at Manyani G.K. Prison