https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11290

**Republic Of Kenya** **In The High Court Of Kenya At Thika** **Criminal Appeal Nos. E033 of 2024 & E005 of 2025 (Consolidated)** **Nicholus Muigai Wairimu……..………………………….………………..…1ST Appellant** **Josephine Njambi Muigai…………………….………………………….……2ND Appellant** **Versus** **Republic……………………………………………..……………………………Respondent** *(Being an appeal against the original conviction and sentence in Criminal Case number E371 of 2020 of the Chief Magistrate’s Court at Gatundu by Hon. D.N Musyoka (CM) delivered on 19 September 2024)* **Judgment** **Background** 1. The Appellants were convicted of the offence of robbery with violence contrary to Sections 295 as read together with 296(2) of the Penal Code. 2. The particulars of the offence were that on 10 August 2021 at Kwa Kairu within Ruiru Sub-County of Kiambu County, jointly with others not before court, they robbed one Josephine Bungei Jerotich of a sum of Kshs. 60,000/=, a Neon mobile phone, ten chickens and two trays of eggs all valued at approximately Kshs. 17,500/= and immediately after the time of such robbery maimed the said Josephine Bungei Jerotich. 3. Upon conviction, the trial court sentenced each of the Appellants to twenty (20) years' imprisonment from the date of arrest pursuant to Section 296(2) of the Penal Code. 4. The appeals herein were subsequently consolidated. High Court Criminal Appeal No. E005 of 2025 filed by Josephine Njambi Mungai was consolidated with High Court Criminal Appeal No. E033 of 2024 filed by Nicholas Muigai Wairimu on 19 August 2025, with Criminal Appeal No. E033 of 2024 being designated as the lead file. 5. Aggrieved by both conviction and sentence, the 1st Appellant preferred this appeal on the following amended grounds: 6. *That the learned trial magistrate erred in both law and fact by convicting the Appellant on a duplex charge sheet which the charges ambigious and difficult to understand and defend.* 7. *That the learned trial magistrate erred in law and fact when he relied on hearsay accounts of arresting police officers who deliberately, unprofessionally and through unlawful action on their part connected the appellant with the current offence to his own prejudice.* 8. *That the learned trial magistrate erred in law and fact when he convicted the Appellant on charges whose basic elements to wit proof of theft, identification with the offence and joint intention were displaced by the prosecution's evidence.* 9. *That the learned trial magistrate erred in law and fact when he relied on the doctrine of recent possession to convict, which was doubtful with severed links and not linked to the appellant to his prejudice.* 10. *That the sentence of twenty (20) years imprisonment was harsh and excessive based on the circumstances of the case.* 11. Also aggrieved by the conviction and sentence, the 2nd Appellant preferred this appeal on the following grounds: 1. *That the learned trial magistrate erred in law and in fact by failing to consider that the identification parade was not conducted which is a crucial element in a case of robbery with violence.* 2. *That the learned trial magistrate erred in law and in fact by failing to note that the elements of robbery were not proved beyond reasonable doubt.* 3. *That the trial magistrate erred in law and in fact by failing to exercise prudence and thus relied on hearsay rather than facts based on factual findings.* 4. *That the learned trial magistrate erred in law and in fact by failing to consider the time spent in remand custody as required under Section 333(2) of the Criminal Procedure Code.* 5. *That the Appellant was unable to afford the appeal fees.* 6. *That the Appellant wished to be present during the hearing of the appeal.* 7. *That further grounds would be adduced during the hearing of the appeal.* 12. The appeal was canvassed by way of written submissions. The 1st Appellant relied on written submissions dated 21March 2025. The Respondent opposed the appeal and filed a Notice of Enhancement of Sentence, urging this Court not only to uphold the conviction but also to enhance the sentence imposed by the trial court on the ground that the sentence of twenty (20) years' imprisonment was manifestly lenient considering the nature and circumstances of the offence. 13. As a first appellate court, I am obligated 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 recognised in ***Okeno v Republic* [1972] EA 32**. **Evidence at Trial** 1. The prosecution called eight (8) witnesses in support of its case while the Appellants elected to give unsworn statements in their defence and called no witnesses. 2. PW1, Josephine Bungei Jerotich, testified that she was employed at KCC Factory along Kangundo Road and supplemented her income through the sale of chickens, honey, charcoal and other household items. On 10 August 2021 at about 11.20 a.m., the 4th accused (the 2nd Appellant), whom she knew, telephoned her and requested to purchase ten chickens. Shortly thereafter, the 2nd Appellant called again and asked to meet her near Kenyatta University, Ruiru Campus, indicating that she had a motor vehicle. PW1 carried ten chickens and two trays of eggs on a motorcycle and proceeded to the agreed location. 3. PW1 testified that upon arrival, she found a motor vehicle registration number KBR 725R, a Toyota Vitz, parked nearby. The 2nd Appellant alighted from the vehicle, opened the boot and assisted in loading the chickens and eggs. The 2nd Appellant then informed PW1 that they were proceeding to Kamaki's area and invited her into the vehicle as she too was headed towards Kenyatta Road. 4. According to PW1, the vehicle had tinted windows. Upon entering through the rear door, she found a man seated inside pretending to read a newspaper, whom she later identified as the 1st accused (1st Appellant). The driver remained unseen. Shortly thereafter, the 2nd accused entered the vehicle and PW1 found herself seated between the two men. 5. PW1 testified that as they conversed about the price of the chickens and her business, the 1st Appellant suddenly punched her on the mouth and slapped her. The assailants tied her hands using a rope, gagged her with a handkerchief and rendered her unable to see properly. She stated that the attackers informed her that they had been paid to kill her and demanded Kshs.300,000/= from her. 6. PW1 further testified that the attackers took away her Neon mobile phone and scrolled through her contacts. They compelled her to call various persons in her contact list and request them to send money under the pretext that she wished to purchase chickens and would refund the sums later. To make the requests appear genuine, the attackers brought the chickens near the phone so that the recipients could hear the sounds of the birds. As a result, various persons sent money ranging between Kshs.10,000/= and Kshs.30,000/= which the attackers later withdrew. 7. PW1 stated that after obtaining the money, the assailants threatened to throw her into a pool of water but eventually abandoned her. She managed to walk to the roadside where a Good Samaritan assisted her to Gatundu Police Station. She was thereafter taken to hospital for treatment. She testified that she had sustained serious injuries, including a fractured arm, and was initially treated at Gatundu Hospital before being referred to St. Peter's Uthiru where surgery was performed and a metal implant inserted in her arm. 8. PW1 testified that she remained admitted in hospital for approximately one week. Subsequently, she recorded a statement with the police and resumed her normal duties. Later, after learning through television reports that a vehicle linked to her attack had been recovered and suspects arrested, she visited Ruiru Police Station where she identified the motor vehicle as the one used during the robbery. She also testified that she was shown photographs on Facebook and identified the persons who had attacked her. According to PW1, she spent approximately six hours in the company of the assailants and was robbed of about Kshs.90,000/= in addition to funds obtained through her Fuliza account. 9. During cross-examination by the 1st Appellant, PW1 stated that prior to the incident she had not known him and first saw him inside the vehicle. She maintained that the 1st Appellant was the person who assaulted her and stated that although she did not initially provide a full description of the motor vehicle, she was able to identify both the vehicle and the assailants. She further testified that the 1st Appellant was not masked. 10. On cross-examination by the 2nd accused, PW1 reiterated that she had been called by the 2nd Appellant and that she subsequently identified the assailants. She also stated that she had provided investigators with descriptions of some of the attackers and the vehicle used in the commission of the offence. 11. During cross-examination by the 3rd accused and the 2nd Appellant, PW1 maintained that the 2nd Appellant was the person who initiated contact with her and arranged the purported purchase of the chickens. In re-examination, she clarified that the registration number of the motor vehicle used was KBR 725R. 12. PW2, 101625 Police Constable John Macharia, the investigating officer, testified in response to an application made by accused persons as to CCTV data. He explained the steps taken by the police, including attempts to obtain CCTV footage and the eventual arrest of the suspects. It was his testimony that the accused persons were withdrawing the money through M-pesa. 13. PW3, Anne Njoki Ndungu, an M-Pesa agent based in Ruiru, testified that on 10 August 2021 at about 1.00 p.m., she received a call from PW1 requesting financial assistance amounting to Kshs.30,000/=. Since she lacked sufficient float at the time, she later sent Kshs.26,000/= and subsequently Kshs.4,000/= through different lines. She later learnt from PW1's husband that PW1 had been attacked and admitted to hospital. PW3 confirmed that the money had been sent to PW1's telephone number. 14. During cross-examination, PW3 maintained that she sent the money because she believed PW1 genuinely required assistance. She further testified that she did not know the 3rd accused and the 2nd Appellant. 15. PW4, Dinnah Mbungei, testified that PW1 called her requesting for money purportedly for the purchase of chickens at Juja Farm. PW4 found it unusual that PW1 was speaking in Kiswahili rather than their normal Kalenjin dialect. She nevertheless sent money to PW1. Later that day, the Officer Commanding Station (OCS), Gatundu, informed her that PW1 had been attacked and hospitalized with serious injuries. 16. During cross-examination, PW4 confirmed that she had indeed sent money to PW1's number and that PW1 had informed her that she intended to purchase a large quantity of chickens. 17. PW5, No. 207110327 Police Constable Dominic Bungei, attached to Naivasha Police Station and a brother to PW1, testified that on 10 August 2021 at about 2.20 p.m., PW1 called him speaking in Kiswahili, which he found unusual because they ordinarily communicated in Kalenjin. PW1 requested him to send her Kshs.10,000/= to enable her purchase chickens. He loaded his account and sent the money to PW1's mobile number 0718164326. 18. PW5 further testified that later that night at about 11.00 p.m., he received a call from Gatundu South Police Station and was requested to speak to a female victim who turned out to be his sister. PW1 informed him while crying that she had been attacked and robbed by three men and a woman. She informed him that she had been assaulted, her arm fractured, and that she had been robbed of ten chicken, two trays of eggs, cash and the money sent to her through M-Pesa. PW5 subsequently travelled to Gatundu and found PW1 hospitalized with visible injuries and a swelling. 19. During cross-examination by the 1st Appellant, PW5 confirmed having sent money to PW1 on the material day. During cross-examination by the 2nd Appellant, he stated that he did not know her prior to the incident. 20. PW6, Dr. Wangui Kamau, a medical officer at Gatundu Level 5 Hospital, testified that PW1 was treated at the facility on 10 August 2021. According to the medical history given, PW1 had been abducted between 10.00 a.m. and 3.00 p.m. by persons known to her, assaulted and threatened with death. Upon examination and X-ray assessment, it was established that PW1 had sustained a fracture on her arm. 21. PW6 testified that she completed the P3 Form on 15 March 2022. At the time of examination, PW1 was still psychologically disturbed by the ordeal. The P3 Form and treatment notes were produced as exhibits. During cross-examination, PW6 maintained that the injuries were consistent with assault and explained that a P3 Form may be completed after a victim has recovered from the immediate effects of the injuries. 22. PW7, Lonny Murithi Gatimu, a Data Analyst employed by Safaricom PLC, testified that pursuant to a court order she generated and produced M-Pesa and subscriber data relating to PW1's mobile number 0718164326 for the period between 7 August 2021 and 8 September 2021. She produced the relevant Safaricom records and M-Pesa statements as exhibits. 23. During cross-examination, PW7 testified that her role was limited to authenticating and producing the records generated from Safaricom systems and that such information could only be released pursuant to a lawful court order. 24. PW8, No. 10625 Police Constable John Macharia, the Investigating Officer, testified that on 10 August 2021 at about 5.00 p.m. he received information from the DCIO regarding the abduction and robbery of PW1. Investigations established that persons who had purported to purchase chickens and eggs had lured PW1 into a motor vehicle where they assaulted her and demanded money. 25. PW8 testified that investigations revealed that approximately Kshs.60,000/= had been sent to PW1's phone by various persons and subsequently withdrawn by the perpetrators. The complainant had also been forced to reveal information relating to her mobile money account. PW8 further testified that PW1 sustained a fractured arm and was taken for treatment. 26. According to PW8, the Appellants were later arrested in connection with another criminal matter in Ruiru. Upon learning of their arrest, PW1 attended the police station and identified them as some of the persons who had attacked her. PW8 also obtained Safaricom records confirming the transfer of funds to PW1's phone. He stated that no recovery was made because the arrests occurred almost a year after the commission of the offence and the motor vehicle registration number KBR 725R used during the robbery was never recovered. 27. During cross-examination, PW8 maintained that PW1 positively identified the accused persons and had provided descriptions of them during the investigations. He explained that no identification parade was conducted because PW1 had already identified the suspects after seeing them and subsequently confirming their identities. He further testified that PW1 consistently identified motor vehicle registration number KBR 725R as the vehicle used during the robbery. 28. At the close of the prosecution case, the trial court found that the prosecution had established a prima facie case against the accused persons and placed them on their defence. 29. In his unsworn defence, the 1st Appellant, Nicholas Muigai Wairimu, denied committing the offence. He testified that he was arrested on 9 March 2022 while carrying on his business of purchasing stock from the 2nd accused. According to him, while travelling towards Thika, another vehicle intercepted them and officers identifying themselves as officers from the DCIO's office in Ruiru arrested them and escorted them to Ruiru Police Station. He stated that eight suspects were paraded before the media and photographed. He further contended that no identification parade was conducted and that the prosecution failed to call the owner of motor vehicle registration number KBR 725R or produce the vehicle before the trial court. 30. In her unsworn testimony, the 2nd Appellant, Josephine Njambi Mungai, testified that she was a businesswoman dealing in second-hand clothes at Wendani and was married to the 1st Appellant with whom they had two children. She testified that on 22 May 2022, police officers from Gatundu South arrested her while she was in Lang'ata. She was subsequently presented before court and charged with the offence of robbery with violence. She denied involvement in the offence and stated that she had previously faced another robbery with violence charge which had since been withdrawn. 31. This marked the close of the defence case. **Analysis and Determination** 1. Having considered the trial court record, the evidence and the grounds of appeal, the following issues are discernible for determination: 2. Whether the charge sheet was fatally defective for being duplex. 3. Whether the prosecution proved the offence of robbery with violence contrary to Section 296(2) of the Penal Code beyond reasonable doubt. 4. Whether the sentence imposed by the trial court was lawful and appropriate and whether the Notice of Enhancement of Sentence is merited. 5. ***Whether the charge sheet was fatally defective for being duplex.*** 6. The 1st Appellant contends that the charge sheet was duplex and therefore defective. The Appellant submits that he was charged under Section 295 as read together with Section 296(2) of the Penal Code, thereby creating ambiguity as to the offence he was required to answer. 7. Section 295 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1930/10) criminalises the offence of robbery. It provides: *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, on the other hand provides for both the offence and sentence for the offence of robbery with violence. It provides: *(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 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. A duplex charge arises where more than one offence is charged in one count in a manner likely to prejudice an accused person. This rule arises from the provisions of section 134 of the [Criminal Procedure Code](https://kenyalaw.org/akn/ke/act/1930/11) which provides as follows: *Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.* 1. In respect to the offence of robbery with violence under Section 296(2) of the penal Code, the same is distinct with the offence of robbery created under Section 296 of the Penal Code. This was clarified by the Court of Appeal in ***Joseph Njuguna Mwaura & 2 Others -v- Republic, [2013] eKLR*** as follows: *We reiterate what has been stated by other courts in various cases before us. The offence of robbery with violence ought to be charged under section 296(2) of the*[*Penal Code*](https://kenyalaw.org/akn/ke/act/1930/10)*. This is the section that provides the ingredients of the offence, which are either the offender is armed with a dangerous weapon, is in the company of others, or if he uses personal violence to any person. The offence of robbery with violence is totally different from the offence defined under section 295 of the*[*Penal Code*](https://kenyalaw.org/akn/ke/act/1930/10)*, which provides that any person who steals anything and at or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under section 295 and 296(2) as this would amount to a duplex charge.* 1. It is evident that the charge before the trial court was duplex. However, this court must be satisfied that the duplex nature of the charge occasioned the Appellants prejudice or a failure of justice that would render their conviction unsafe. In ***Paul Katana Njuguna v Republic [2016] KECA 207 (KLR)*** the Court emphasized that the mere existence of a duplex charge does not automatically render a conviction unsafe. The Court stated: *In the instant matter, the charge sheet, in our view, disclosed the offence known in law and the appellant was able to plead to the charge and participated in the trial. We are unable to find that the appellant suffered any prejudice or miscarriage of justice as a result of the manner in which the charge was framed.* 1. The guiding consideration therefore is whether the accused person understood the charge facing him and whether the manner in which the charge was framed occasioned prejudice or a failure of justice. 2. The particulars of the charge before the trial court disclosed the ingredients of the offence of robbery with violence being that there was an alleged theft, that the Appellants acted jointly, and that violence was meted on the complainant in the course of that theft. Further, the trial court record demonstrates that the Appellants actively participated in the proceedings, extensively cross-examined the prosecution witnesses and mounted their respective defences. At no stage of the trial did either Appellant indicate that they did not understand the charge facing them. I am satisfied that the Appellants fully understood the nature of the charge and the case they were required to answer. No prejudice has been demonstrated and no miscarriage of justice has been shown to have arisen from the manner in which the charge was framed. Consequently, although the charge as framed was duplex, I find that no failure of justice was occasioned. *ii.* ***Whether******the prosecution proved the offence of robbery with violence contrary to Section 296(2) of the Penal Code beyond reasonable doubt.*** 1. The burden rested upon the prosecution to prove the offence beyond 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 succinctly 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. Proof of any one of the foregoing ingredients is sufficient to sustain a conviction under Section 296(2) of the Penal Code. Where more than one ingredient is established, the prosecution's case becomes even stronger. ***Whether theft was proved*** 1. Before considering the ingredients of violence, the Court must first be satisfied that a robbery occurred. 2. PW1 gave a detailed account of how she was lured by the 2nd Appellant under the guise of purchasing ten chickens and two trays of eggs. She testified that after boarding motor vehicle registration number KBR 725R, she was assaulted and deprived of her property. She further testified that she was robbed of cash, a mobile phone, ten chickens and two trays of eggs. In addition, her assailants forced her to contact relatives and acquaintances and request them to send money to her mobile phone account. 3. The evidence of PW1 was corroborated by PW3, PW4 and PW5 who independently testified that they received calls from PW1 requesting financial assistance for the purported purchase of chickens and subsequently transmitted money to her mobile phone number. 4. PW7, a Safaricom Data Analyst, produced subscriber and M-Pesa records relating to PW1's telephone number. The records confirmed that funds were indeed transmitted to PW1's account during the material period. 5. The evidence of theft was therefore corroborated by independent witnesses as well as documentary evidence. I am satisfied that the prosecution proved beyond reasonable doubt that property belonging to PW1 was unlawfully taken from her. ***Proof of any of the ingredients under Section 296(2)*** 1. PW1 consistently testified that she was attacked by a group comprising three men and one woman. According to her evidence, after she entered the vehicle, she found one male person seated inside, another male person subsequently entered the vehicle, while the 2nd Appellant was also present. 2. From the evidence presented, it is clear that the robbery was executed by more than one person acting in concert. The prosecution therefore proved the second ingredient contemplated under Section 296(2) of the Penal Code. 3. Furthermore, the evidence of the use of violence was overwhelming and largely uncontested. PW1 testified that shortly after entering the vehicle, she was punched, slapped, tied with ropes and gagged. She stated that the assailants repeatedly assaulted her while demanding money and threatened to kill her. PW1 further testified that during the ordeal she sustained a fracture to her arm and was eventually abandoned in a bush after the assailants had obtained money from her and her acquaintances. 4. The testimony of PW1 was corroborated by PW5 who stated that when he saw his sister after the incident, she was visibly injured, bandaged and swollen. PW5 testified that PW1 informed him that she had been assaulted, tied up, robbed and had suffered a fractured arm. 5. Most significantly, the evidence of violence was corroborated by medical evidence. PW6, Dr. Wangui Kamau, testified that PW1 was treated at Gatundu Level 5 Hospital following the incident. According to the medical findings, PW1 had sustained a fracture of the arm as a result of the assault. PW6 produced the P3 Form and treatment notes as exhibits. The P3 Form constitutes documentary medical evidence and confirms that PW1 suffered actual bodily harm in the course of the robbery. The medical findings were entirely consistent with PW1's account of being physically assaulted by her attackers. 6. I therefore find that the prosecution proved beyond reasonable doubt that the offenders wounded, beat, struck and used personal violence against PW1 immediately before, during and after the robbery. 7. Consequently, the prosecution established not one but two of the ingredients required under Section 296(2) of the Penal Code, namely that the offenders were in the company of more than one person and that they used actual violence upon the complainant. ***Whether the Appellants were positively identified*** 1. The Appellants' principal challenge concerns identification. They argue that no identification parade was conducted and that the complainant only identified them after seeing them on television. 2. Courts have repeatedly warned of the danger of relying on visual identification without carefully examining the circumstances under which such identification was made. In ***Wamunga v Republic* [1989] KECA 47 (KLR)**, the Court of Appeal held that Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. 3. In the present case, however, the circumstances were markedly different from those obtaining in a fleeting encounter. 4. The evidence of PW1 was that she first communicated directly with the 2nd Appellant by telephone. She thereafter met the 2nd Appellant physically at the agreed location. The 2nd Appellant personally assisted in loading the chicken and eggs into the motor vehicle before inviting PW1 into the vehicle. 5. PW1 further testified that she remained in the company of her assailants for several hours during daytime. The robbery was not instantaneous. Rather, it involved prolonged interaction while the assailants discussed payment, demanded money from her contacts and transported her from one location to another. The evidence shows that PW1 had ample opportunity to observe the persons who robbed her. The interaction occurred in broad daylight and extended over a considerable period. 6. Although PW8 admitted that no identification parade was conducted, failure to conduct an identification parade is not invariably fatal where a witness had sufficient opportunity to observe and identify the perpetrators. This was also a case where the complainant admits to have seen the Appellants in the news and on Facebook prior. Identification parade evidence would in that case have been of no value. 7. I have carefully reconsidered the entirety of the evidence and I am satisfied that PW1's identification of the Appellants was not based merely on seeing them on television. The television broadcast merely prompted her to follow up with the police. Her identification stemmed principally from the lengthy interaction she had with the assailants during the robbery. 8. I further note that PW1 was able to identify the vehicle registration number KBR 725R and consistently narrated the sequence of events leading to the robbery. Her evidence remained consistent throughout cross-examination and was not materially shaken. 9. I am therefore satisfied that the possibility of mistaken identity was sufficiently excluded and that the Appellants were positively identified as participants in the robbery. ***Whether the prosecution case was displaced by the defence*** 1. The 1st Appellant gave an unsworn statement denying involvement in the offence and challenging the absence of an identification parade. He also faulted the prosecution for failing to produce the motor vehicle allegedly used during the robbery and for not calling its owner as a witness. The 2nd Appellant similarly denied involvement and stated that she was a businesswoman who had been arrested and charged with the offence. 2. While the Appellants challenged aspects of the investigations, they did not offer any evidence capable of displacing the direct evidence of PW1, the corroborative evidence of PW3, PW4 and PW5, the Safaricom records produced by PW7 and the medical evidence tendered by PW6. 3. The failure to recover the motor vehicle or call its owner did not weaken the otherwise cogent evidence adduced by the prosecution. The prosecution is not required to call a superfluity of witnesses where the evidence tendered is sufficient to prove the charge. 4. Upon my own independent evaluation of the entire record, I am satisfied that the prosecution proved beyond reasonable doubt that the Appellants jointly participated in the robbery and that the robbery was accompanied by violence resulting in serious injury to the complainant. 5. On the Appellant's contention that the trial court improperly relied on the doctrine of recent possession, I find that ground to be without merit. A review of the judgment reveals that the conviction was principally founded on the direct evidence of PW1, corroborated by the testimonies of PW3, PW4 and PW5, the Safaricom records produced by PW7, and the medical evidence tendered by PW6. The doctrine of recent possession applies where stolen property is found in the possession of an accused person shortly after the theft and no reasonable explanation is offered for such possession. In the present case, no stolen property was recovered from either Appellant and the prosecution did not rely on the doctrine as the basis for securing a conviction. Consequently, the Appellant's complaint regarding the application of the doctrine of recent possession is misconceived, as the conviction was anchored on positive identification and other corroborative evidence which proved the offence beyond reasonable doubt. 6. Consequently, I find that the offence of robbery with violence contrary to Section 296(2) of the Penal Code was proved beyond reasonable doubt against both Appellants. iii. ***Whether the sentence imposed was lawful and appropriate and whether the Notice of Enhancement of Sentence is merited*** 1. The Appellants were each sentenced to twenty (20) years' imprisonment following conviction. 2. Sentencing is a matter resting within the discretion of the trial court. An appellate court will only interfere where it is shown that the trial court acted on wrong principles, considered irrelevant factors, failed to consider relevant factors or imposed a sentence that is manifestly excessive or manifestly lenient. 3. The Respondent filed a Notice of Enhancement of Sentence urging this Court to enhance the sentence imposed by the trial court. 4. I have considered the circumstances of the offence. The complainant was lured through deception, abducted, assaulted, threatened with death, robbed of her property and suffered a fractured arm. The offence was undoubtedly serious and traumatic. 5. The Judiciary Sentencing Policy Guidelines, 2023 provide that sentencing should be guided by the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation, while at the same time ensuring proportionality between the offence committed and the sentence imposed. Having considered those principles, I am satisfied that the sentence of twenty (20) years' imprisonment imposed upon each Appellant appropriately reflects the gravity of the offence and the circumstances under which it was committed. In the circumstances, I am not persuaded that the sentence imposed was either manifestly excessive as contended by the Appellants or manifestly lenient as urged by the Respondent. I therefore find no basis for interfering with the sentence imposed by the trial court and similarly find no justification for enhancing the sentence. **Disposition** 1. Accordingly, the consolidated appeals are hereby dismissed. The conviction and sentence imposed by the trial court are upheld. **Judgment Dated and Delivered Virtually this 23rd day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Nabil M. Orina** **Judge** **In the presence of:** ***The Appellants logged in through Microsoft Teams from Prison*** ***Linda – Court Assistant***