https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12859

Waithiegeni v Republic (Criminal Appeal E008 of 2024) [2026] KEHC 12859 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 12859 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E008 of 2024 DKN Magare, J July 28, 2026 Between Brian Warui Waithiegeni Appellant and Republic Respondent Judgment 1.This is an appeal from the conviction and sentence of Hon. M.M. Gituma (SRM) in Nyeri CMCR No. E037 of 2022 delivered on 25.01.2024 and sentence given on 07.03.2024 and sentence given on 20.05.2024. The appellant was charged with 5 counts. He had been arrested on 28.09.2022. 2.The first count was attempted rape contrary to Section 4 of the Sexual Offences Act. The particulars being that on 1.05.2022, at [Particulars Withheld] area in Nyeri Central Sub-County within Nyeri County, he intentionally attempted to commit an act of penetration of the penis into the vagina of TNG. 3.The second count was committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act. The particulars being that on 1.05.2022, at [Particulars Withheld] area in Nyeri Central Sub-County within Nyeri County, he unlawfully and intentionally sucked the breast of TNG. 4.The third count was sexual assault contrary to Section 5(1)(a) (i) as read with Section 5(2) of the Sexual Offences Act. The particulars being that on 1.05.2022, at [Particulars Withheld] area in Nyeri Central Sub-County within Nyeri County, he unlawfully penetrated the vagina of TNG with his fingers. 5.The fourth count was robbery with violence contrary to section 296(2) of the Penal Code. The particulars being that on 1.05.2022, at [Particulars Withheld] area in Nyeri Central Sub-County within Nyeri, he robbed TNG Ksh 1,000/= from her M-Pesa account and a Tecno Spark 8P phone valued Ksh. 16,000/= and immediately before the time of the said robbery threatened to use personal violence against TNG. 6.The appellant was arrested on 28.09.2022 and taken to court on 29.09.2022. He pleaded not guilty to all 4 counts. The court directed that the Appellant be provided with legal representation. However, there were no bond proceedings on record. Upon hearing the witnesses, the court acquitted the appellant of count 1, attempted rape. He was convicted on count 2, committing an indecent act, count 3, sexual assault, and count 4, robbery with violence. 7.The appellant was sentenced as follows:a.Count 1 – acquittedb.Count 2 - 4 yearsc.Count 2 - 15 yearsd.Robbery with violence - 50 yearse.The sentences were to run concurrently from the date of remand. 8.The appellant filed an appeal and set forth the following grounds of appeal:a.The learned trial magistrate erred in both law and fact in failing to appreciate the fact that the alleged complainant in this case clearly demonstrated an incredibly doubtful integrity and whose evidence was and remains doubtful occasioning a serious prejudice.b.That the learned trial magistrate again erred in both law and fact in failing to appreciate that the critical elements in robbery with violence were not proved to the required standards in law occasioning a serious miscarriage of justice.c.That the learned trial magistrate further erred in both law and fact in not considering that the whole prosecution case was riddled with material discrepancies which were capable of unsettling the verdict hence a prejudice.d.That the learned trial magistrate further erred in law and fact in failing to consider the plausible appellant’s statement in defense which was not contested and or unproved by the prosecution hence still stands clearly demonstrating that the instant matter was a framed up one to curtail my success for envious reasons.e.That the instant matters proof was below the required standards of proof and therefore capable of impeaching the whole substance of the matter.f.That the learned trial magistrate erred in law and fact by imposing a harsh and traumatizing sentence hence violating article 25(c) and 50(2)(p) of the constitution of Kenya 2010. 9.The following supplementary grounds were filed:a.Defenctive charge sheet; substantive legality of the charge sheet; improper framing of counts.b.The charge sheet was not proved; ownership of purported stolen items not established.c.Failure to call key and essential witnesses; reliance upon the uncorroborated testimony of a single witness.d.The appellant’s defence was not considered. 10.PW1 was Daniel Hamisi of Safaricom department of law enforcement liaison officer, Safaricom headquarters. He was assigned to investigate an account through a warrant dated 4.1.2022. It was Misc. Application No. 141 of 2022. He prepared a report dated 10.11.2022; it was for an account of Brian Waithiegeni. The statement relates to 30.4.2022 and 4.05.2022. He prepared a certificate dated 1.02.2022. He was not cross-examined. 11.PW2, TNG, testified that she was a student. She stated that she met a lady known as TEE, who promised to help her secure a promotion job with Supreme. On the material day, TEE informed her that she would not be able to accompany her and instead told her that a person called Ray would pick her up and take her to Gatitu for an interview. PW2 testified that Ray later called her and asked her to go to Beavers, which she did. Upon meeting him, Ray informed her that TEE was in Chaka and that they would have to wait for her before leaving. They engaged in casual conversation before proceeding to Ikulu in Skuta, where they were allegedly to wait for TEE. 12.According to PW2, the appellant insisted that she order a drink while they waited. She complied and paid for the drinks herself. Ray informed her that TEE had requested that they meet at a certain roundabout before proceeding to Gatitu. However, they took a different route. Along the way, they encountered people smoking cannabis by the roadside. At that point, PW2 began to suspect that there was no job interview as promised, particularly when they reached the end of the road. PW2 testified that they eventually arrived at a bushy area. She started questioning Ray about their destination and the promised interview. In response, Ray slapped her. 13.PW2 testified that after slapping her, the appellant threw away her bag, lifted her dress, and removed her brassiere. He then demanded that she “please him as a man.” She stated that, out of fear, she complied with his demands. According to her testimony, the appellant instructed her to satisfy men without engaging in sexual intercourse. He made her stand up and, after removing her brassiere, touched and sucked her breasts. 14.PW2 further testified that she was compelled to stimulate the appellant’s penis. She stated that the appellant threatened her, telling her that he could rape her and dispose of her body without anyone knowing. She testified that she feared for her safety and therefore complied with his demands. PW2 also stated that the appellant inquired whether she had any money and later sent money to him. She explained that the mobile phone number used for the transaction was registered in the name of her aunt. 15.PW2 further testified that the appellant demanded that she hands over her mobile phone. Before surrendering it, she removed the password from the device. Thereafter, they parted ways. She stated that she later obtained the services of a motorcycle rider, who informed her of the appellant's name. PW2 further testified that the person who sucked her breasts also inserted his fingers into her vagina. She described the appellant as being very aggressive. She continued that the appellant told her that both his father and mother had died. She further testified that he spat on her during the ordeal. 16.On cross-examination, PW2 testified that she identified the appellant at the police station. However, she stated there was no identification parade report. Her evidence was that she was able to recognise the appellant's face and that she also saw him during police interrogation. She maintained that the person who had introduced himself as “Ray” was the appellant seated before the court. PW2 further testified that she paid for the drinks they partook of at Skuta. She testified that she was not familiar with the area. She stated that TEE had previously sent her photographs relating to the purported job opportunity, but she did not provide those photographs to the court or the investigating authorities. 17.She testified that she could not remember the name of the boda boda rider who assisted her after the incident. PW2 further stated that she did not scream or raise an alarm during the ordeal. However, she provided the police with the rider’s telephone number and the phone number associated with the incident. PW2 also testified that the boda boda rider threatened to throw her into a river. The relevance of this last statement is unclear. 18.She stated that she told the court that the phone was stolen. She did not show the text message or produce evidence to show that the Tecno phone existed. She was stood down, and later her phone was not going through. 19.PW2 was later recalled, sworn, and testified in Kiswahili. She stated that her aunt,MW, was not a witness in the case. She further testified that the boda boda rider also accompanied her to the police station, although she did not know whether he recorded a statement with the police. 20.PW2 stated that she informed two people about the incident. She admitted that she had consumed alcohol on the material day but maintained that she was not intoxicated. She further testified that she sent money to the appellant. However, she stated that she did not know the real name of TEE. PW2 maintained that the incident had indeed occurred and insisted that she was telling the truth. 21.On re-examination, PW2 stated that she identified the appellant when she saw him at the police station. She explained that she followed the person known as Ray because he had informed her that TEE was on her way. She further testified that she attempted to contact her parents but was unsuccessful. 22.PW2 stated that she began sensing danger while at the club when TEE failed to answer her phone calls. She stated that the money she sent to the appellant was not related to any job opportunity. Rather, she sent it because Brian had threatened her. 23.PW3 was William Muriuki who testified that he is a doctor at Nyeri County Referral Hospital. He had a bachelor’s degree in medicine and surgery. She reported that she was sexually assaulted. He stated that she had an old broken hymen and there were no external injuries. The PRC was filled. The patient had not attended any medical facility before. There were no bodily injuries, and she reported that a person inserted fingers in her vagina and threatened to kill her. 24.PW4, Police Constable Newton Mwangi of Nyeri Police Station, testified that he was the investigating officer in the matter. He stated that the complainant reported a robbery with violence on 4.05.2022. According to the report, the appellant demanded Ksh. 1,000/= from the complainant, which she subsequently sent. The money was transmitted via mobile number 011xxxxx52. Investigations revealed that the number was registered in the name of MW, although further inquiries linked its use to the appellant. 25.He testified that he obtained warrants to investigate the appellant’s M-Pesa account. He also visited the scene of the alleged offence, which was a riparian area. According to the complainant’s account, this was the location where the appellant threatened to throw her into the river before robbing her of her mobile phone. The officer further testified that the complainant initially reported the matter at Ruringu Police Station on 02.05.2022 but was dissatisfied with the response she received there. She thereafter proceeded to Nyeri Central Police Station, where the complaint was formally recorded, and investigations commenced. 26.He stated that investigations established that the appellant had allegedly slapped the complainant, inserted his fingers into her vagina, forced her to perform oral sex on him, and sucked her breasts. He further testified that the appellant and the complainant had been communicating prior to meeting and eventually met at a bar in Skuta, where they spent some time together before proceeding to the location where the alleged offences occurred. 27.On cross-examination, he stated that at the time of making the report, the complainant did not have a phone. She did not have an OB number from Ruringu. An older female went to report with the complainant. He did not get the name of the boda boda rider from Ruringu police station. TEE was allegedly offering her a job. They tried to trace TEE in vain. He did not have the IMEI in court. When he met the complainant, she had been treated. He also did not investigate the complainant’s number. Unfortunately, he gave evidence of character, which is not permitted. The complainant had met the appellant at the police station. 28.The appellant was found to have a case to answer. Section 211 of the Criminal Procedure Code was complied with. 29.The appellant gave sworn testimony in his defence and called one witness. The appellant testified that he was a resident of Skuta and worked as a disc jockey (DJ) at a local club. He stated that he was introduced to the complainant by one Tracy, also known as “Queen T,” who was involved in promotional work. According to him, Tracy introduced the complainant because she was seeking employment opportunities, and he was requested to keep her company until Tracy arrived. 30.The appellant testified that on 01.05.2022, he met the complainant at Beavers Restaurant. He stated that the complainant later informed him that there was no need to continue waiting for Tracy. Thereafter, they proceeded to Ikulu, where the complainant paid for the drinks they consumed. He informed the complainant that he needed to visit his mother, who was bedridden. He later testified that he escorted the complainant to the main road and did not know where she went thereafter. He denied stealing her mobile phone and maintained that the complainant was in a jovial mood while they were at the club. 31.The appellant further testified that he lived in Skuta and denied ever going to St. Jude with the complainant. He stated that there was no river at St. Jude and denied threatening the complainant in any riparian area. He admitted that mobile number 011xxxxx52 belonged to him but explained that the money sent to that number was a tip intended for Queen T for assisting the complainant in securing employment. 32.He stated that he did not know the make or model of the complainant’s phone and denied being found in possession of it. He further denied causing any malicious damage to property. According to him, there was no alternative road leading to St. Jude as alleged by the prosecution. 33.The appellant testified that after parting ways with the complainant, he went to attend to his mother by taking her medication. He later went to town, where he purchased keg beer and paid Kshs. 70/=. He maintained that he had no involvement in the offences alleged against him. 34.The appellant further stated that he had previously been arrested in connection with a separate allegation of malicious damage to property, but denied any involvement in the offences forming the subject of the present case. 35.On cross-examination, the appellant testified that it was Queen T who initially called the complainant. He stated that he knew Queen T through club promotional activities, as she worked as a promoter in various clubs. He denied ever sexually assaulting the complainant or any other woman. 36.The appellant further testified that he had been arrested for an unrelated offence of malicious damage to property. He stated that he did not know the specific club where the proposed promotion job was to take place. He continued that Club Ikulu is situated along the Nyeri–Karatina Road. They were supposed to meet Queen T at about 8.00 p.m. He met the complainant earlier at approximately 6.30 p.m. He stated that he called Queen T via WhatsApp and that she informed him she was on her way. He, however, did not know whether the complainant was also communicating with Queen T while they were at Beavers Restaurant. 37.The appellant testified that they later left Club Ikulu, where the complainant had paid for the drinks they consumed. He stated that he arrived at his mother's house at about 11.45 p.m. and did not know where the complainant went thereafter. He maintained that the complainant sent him money as an incentive for assisting her to secure employment. However, he conceded that he did not know why she did not send the money directly to Queen T. He further stated that he did not know how the complainant sustained the marks allegedly observed on her body. 38.The appellant testified that the road leading to St. Jude proceeded towards Mesha and not Gatitu. He stated that the river is at Express Inn and not at St Jude. He further testified that there was a swamp in that area protected by guard rails. He denied taking the complainant’s phone. He stated that on the material day he paid Kshs. 100/= for a motorcycle ride from home and Kshs. 70/= at Club Victory. He also stated that he conducted an M-Pesa transaction of Kshs. 230/=. According to him, he stayed at home for about ten minutes before proceeding with his activities. He added that he was his parents’ only child. 39.On re-examination, the appellant testified that he parted ways with the complainant at about 11.30 p.m. and did not know where she went thereafter. He further stated that the P3 form indicated that the complainant had no physical injuries or marks on her body. The appellant denied being friends with Queen T, maintaining that he only knew her through promotional activities at entertainment venues. The appellant also testified that he did not know the person the complainant was speaking to on the phone during the material period. He further denied ever entering Beavers Guest House. 40.The appellant also denied forcing the complainant to pay any bills or expenses incurred during their meeting. He maintained that he left the complainant at St. Jude and thereafter went his own way. He reiterated that he neither assaulted nor robbed the complainant. 41.DW2, the appellant’s mother, gave evidence in support of the defence case. She stated that on 01.05.2022, the appellant left home at about 6.00 p.m. and returned between 11.30 p.m. and 11.45 p.m. She confirmed that the appellant was her son and her only child. She further stated that the appellant returned home during the night to administer her medication before leaving again to continue his work as a DJ. She stated that she could not recall whether it rained on the material night, but observed that the appellant did not appear to have been rained on when he returned home. 42.On cross-examination, DW2 testified that the appellant was her only child. She stated that she was bedridden and used a wheelchair. Her testimony was taken virtually. She further testified that on the material day, her husband was away at work as a driver, necessitating the appellant’s visit to administer her medication. She stated that she did not know where the appellant was or what he was doing between 6.00 p.m. and 11.00 p.m. She testified that the appellant remained at home for approximately 30 minutes before leaving again. According to her, when the appellant later returned, he was wearing the same clothes as earlier in the evening. 43.She further testified that the appellant argued with the witness’ sister-in-law, which had resulted in his arrest. It was her evidence that her husband had taken people on a private trip to Nyahururu on the material day. Due to her physical condition, she required assistance in getting out of bed and depended on the appellant to help her and administer her medication. Impugned Judgment 44.In its analysis of the evidence, the trial court found that the charge of attempted rape had not been proved. The court observed that, on the prosecution's own evidence, there was nothing to prevent the appellant from committing rape if that had been his intention. The court noted that, although the complainant had been taken to a secluded location and subjected to various acts, the evidence disclosed the commission of sexual offences other than attempted rape. Consequently, the court held that the ingredients of the offence of attempted rape had not been established and that the charge failed. 45.With regard to the charge of committing an indecent act with an adult, the court found the complainant was not corroborated. The court relied on section 124 of the Evidence Act. The court noted that the complainant remained consistent throughout cross-examination and never wavered in her account. It further found that the complainant positively identified the appellant as the person who had presented himself as “Ray,” noting that they had spent a considerable amount of time together before the offences occurred. 46.The court further held that the acts of sucking the complainant's breasts and inserting fingers into her vagina constituted sexual assault and amounted to an indecent act. The court noted that there had been a lapse of time between the occurrence of the offence and the complainant's medical examination, which could explain the absence of significant physical findings. In reaching its determination, the court relied on section 124 of the Evidence Act and accepted the complainant's testimony as truthful. 47.On the charge of robbery with violence, the court found that the appellant had assaulted the complainant and compelled her to send him money. The court further found that the appellant threatened to rape the complainant and to dispose of her body if she resisted. The court held that the violence used against the complainant included sexual violence. Having considered the evidence in its entirety, the court concluded that the ingredients of the offence of robbery with violence had been proved beyond reasonable doubt and accordingly found the charge established. Submissions 48.The Appellant filed undated submissions forwarded on 24.11.2025. He added supplementary grounds in the appeal. Hr submitted that the prosecution case was riddled with inconsistencies. The court convicted on uncorroborated evidence of PW1. The alleged stolen items were not shown to belong to her. The charge sheet was also said to be defective contrary to section 134 of the Criminal Procedure Code. He submitted that the charge did not meet the required legal standard and that its framing compromised his ability to understand the charge against him. 49.He further submitted that there was failure to frame minor offences as alternatives. Therefore, it resulted in the appellant being charged with the same offences arising from the same factual transaction. Reliance on the case of David Ndumba v Republic [2013] KECA 233 (KLR), where the court of appeal [Visram, Koome & Odek, JJ.A, as they then were] held as follows:Having perused the record, we cannot help but note that the appellant’s defence was considered by the trial court, which found that there was no reason for Grace and Geoffrey to give false testimony against him. On the issue of the alternative charge, we find that nothing turns on the fact that the trial court did not make a pronouncement on the same. In M.B.O. –vs- Republic, – Criminal Appeal No. 342 of 2008, this Court held,‘The practice of charging offences in the alternative is one of abundant caution, and that is why no finding is made on such charge once there is ample evidence to support the main charge. 50.He lamented that the court also breached double jeopardy by convicting him of sexual assault and, at the same time, using the same conduct for robbery with violence. He also submitted that section 296(2) of the Penal Code is an aggravating form of theft. There was no proof that the items alleged to have been lost belonged to the complainant or that she had them. There was also no evidence that the offender was armed with a dangerous weapon, was wounded, beaten or struck, or used personal violence immediately before or after the robbery. Reliance was placed on the case of Oluoch vs. Republic [1985] KLR 549 and Gazi & 2 others v Republic (2005) KLR. 51.There was no evidence that the phone existed and/or was recovered from the appellant or stolen from the complainant. It must be shown that the goods recovered were the same ones stolen, and mere resemblance is not enough. Reliance was placed on the case of Samuel Mwangi Macharia & 2 others v Republic [2015] KECA 768 (KLR), where the court of appeal [Mwilu, Musinga & Kiage, JJ.A.] stated as follows:When an item that is alleged to have been stolen is recovered, the person from whom it was stolen must be able to satisfy the court by production of relevant evidence that the item is the one that was stolen from him and not any other. It is not enough to show that the recovered item resembles the one that was stolen. In this case, PW1 told the trial court that he had a receipt that was issued to him when he purchased the cell phone, but he did not produce the same. Pw1 also did not tell the trial court the serial number of his cell phone or adduce any other evidence, like that of an inscription of a mark on the recovered cell phone, to satisfy the court that it was indeed the one that had been stolen from him. There are many Motorola C113A cell phones which look alike, and it was therefore necessary that PW1 distinguish his from any other of a similar make. Consequently, the recovery of that cell phone from the vehicle in which the appellants were riding per se cannot amount to sufficient evidence to sustain the conclusion that the appellants were the ones who robbed PW1 of the same. 52.He submitted that failure to prove the existence of money and the phone was fatal to the case. Reliance was placed on the case of Langat v Republic [2024] KEHC 4406 (KLR), where GL Nzioka J, stated as follows:PW3 No. 59xxx50 PC Mike Maganje, who investigated the matter, did not allude to the ownership of the stolen phone and money. He did not inform the court whether he ever sought the receipt to prove the phone was bought and later stolen or whether he even requested PW2 Njenga, who bought the phone, to give him a receipt. In cross-examination, the investigating officer stated:‘I asked for a receipt of the phone later on. She did not have the receipt when first report was recorded’He rested his evidence there and the prosecutor did not pursue it in the re-examination.34.Pursuant to the aforesaid there is no conclusive evidence that the phone and the money stolen were in the complainant’s possession before the theft. They may or may not, which creates doubt to the benefit of the appellant. 53.He submitted that the state did not prove ownership. There was no forensic evidence linking the phone to the complainant and the theft. The number was stated to be registered in the name of MW, who was not called. He relied on the case of Wanjiku v Republic [2024] KEHC 4184 (KLR), where GL Nzioka, J, held as follows:In the instant matter, I note that, although PW1, Wamaitha, testified that she was robbed of Kshs 5000/- which was not recovered, no evidence was led to prove that the money existed before it was stolen. She testified that the Kshs 5,000/- was her daily collection, but no evidence was led that she worked as a conductor, employer, the motor vehicle or any other form of evidence. Therefore, it was not established how much money she had and how much was stolen. In the same vein, PW2 Laban did not produce any evidence to prove the existence and/or ownership of the stolen phone or money. Therefore, the element of robbery was not proved. 54.It was submitted that the alleged theft, central to the robbery, was not proved. The charge sheet did not specify the nature of the weapon, and none was testified on. Absence of a weapon renders the offence unproved. They relied on the case of Suleiman Juma v Republic [2001] KEHC 825 (KLR), where [Onyancha J & Khaminwa CA), held as followsIf our interpretation of s 296(2) of the Penal Code as done hereinabove is correct (and we so hold) the words “dangerous or offensive weapons” need not be imperatively included in each charge. The prosecution would include only the words of s 296(2) that the facts of the case would necessarily require. In the case before us the charge stated that the accused was armed with a sword without describing the knife as a dangerous or offensive weapon or instrument. As stated in the Court of Appeal Criminal Appeal No 86 of 2000, Daniel Moraa Mose –vs- Republic, a charge with that ingredient omitted is likely to bring prejudice and lead to injustice and is incurable especially where the accused is not represented by counsel.We hold that it cannot be said that the appellant was not prejudiced in this case. We hold also that the defect in the charge was material and was not curable. The appellant’s appeal therefore succeeds on this ground. 55.Further reliance was placed on the case of Daniel Muthomi M’arimi v Republic [2013] KECA 237 (KLR), where the court of appeal [Visram, Koome & Otieno-Odek, JJ.A] held as follows:In the present case, the appellant is faced with a charge of robbery with violence contrary to Section 296 (2) of the Penal Code. A charge under this section has three essential ingredients that must be proved by the prosecution. In Johana Ndungu –v – R, Criminal Appeal No. 116 of 1995, the ingredients for the charge of robbery with violence were stated to be:(i)if the offender is armed with any dangerous or offensive weapon or instrument or(ii)if he is in company with one or more other person or persons or(iii)if, at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other violence to any person.11.We are alive to the requirement that proof of any one of the ingredients of robbery with violence is enough to base a conviction on under Section 296 (2) of the Penal Code. In the case of Juma v. Republic, [2003] of R.A 471, it was held that “where the prosecution is relying on an element or ingredient of being armed, it must be stated that in the particulars of the charge that the weapon or instrument which the appellant was armed was a dangerous or offensive one. 56.He submitted that the limb of being in a company of another was not applicable as the appellant was said to be alone. Reliance was placed on Musa Ahmed v Republic [2016] KEHC 5995 (KLR). Further, he testified that they did not testify on physical injuries. The description given relates more to sexual assault than not. This could even be simple robbery and not robbery with violence. Reliance was placed on the case of Donald Atemia Sipendi v Republic [2019] KEHC 10855 (KLR), where J, held as follows:The third ingredient is that at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. First, there is no mention that at or immediately after the time of the robbery the complainant was wounded or beaten. There is no mention that he she was struck or he used violence. She said they struggled and he took her handbag. At page 16 she stated that he over powered her then she released her handbag. She also stated that she had no visible injuries.27.The evidence tendered in this case did not establish the ingredients of Robbery with violence. In my view it could only be useful if the appellant was charged under section 296(1) of the Penal Code which provides a maximum sentence of 14 years. The appellant has served 8 years now. 57.It was posited that all these, taken together, show that the case is not watertight. They prayed that the conviction be quashed or remitted for resentencing. Further, they averred that the court relied on uncorroborated testimony of a single witness. It was averred that when it is a single identifying witness, then the court must be cautious on the dangers of convicting on the evidence of a single witness. Reliance was placed on the cases of Maitanyi v Republic [1986] KECA 39 (KLR). 58.He submitted that warning must be considered when the evidence is considered. He relied on the case of Roria v Republic [1967] EA 583. It was further submitted that there was failure to call crucial witnesses, especially Tee. MW was also not called to clarify the ownership of the line. The court should draw an adverse inference for failure to call the crucial witnesses. Reliance was placed on the case of Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), on the displacement of alibi as follows:But even assuming that the appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the appellant’s defence. The section states as follows:“309.If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” 59.Further, it was submitted that the court must resolve the defence and prosecution case at the same time. He relied on the case of Ouma v Republic [1986] KECA 50 (KLR), where the court of appeal posited as follows:The learned judge on Murutu’s appeal said that the court at the time of evaluating the prosecution evidence must have in mind the accused’s defence (which was alibi in Murutu’s case, and wrong identification in the case of the appellant), and must satisfy itself that the prosecution had by its evidence left no reasonable possibility of that defence being true, that that did not appear to have been done in this case. 60.The respondent submitted that the appellant was convicted on three counts. They oppose the appeal in its entirety. They submitted that there was sexual violence; hence, the robbery was proved. The appellant threatened to rape the complainant; the complainant sent a sum of Ksh 1,000/= from her phone. The second ingredient was proved by the taking of the phone. It was submitted that the phone belonged to her aunt, MW, which was in the complainant’s possession. 61.The Respondent submitted that the identity of the assailant was not in doubt, as the complainant and the appellant had spent a considerable part of the day together prior to the commission of the offences. It was argued that the complainant had ample opportunity to observe and recognise the appellant, thereby eliminating any possibility of mistaken identity. 62.On sentence, the Respondent submitted that the sentence imposed for robbery with violence ought to have been the death penalty, being the sentence prescribed by law. However, no submissions were made regarding the convictions or sentences relating to the other offences. It is not clear from the Respondent's submissions where the impression was derived that the appeal was confined solely to the conviction for robbery with violence. A review of the Petition of Appeal and the petition of appeal filed by the appellant reveals that the appeal challenged both the convictions and sentences on all the counts for which the appellant was convicted. 63.Consequently, the Respondent's treatment of the appeal as being limited to the offence of robbery with violence was misplaced and unsupported by the record. The Court shall therefore consider all the grounds of appeal properly raised by the appellant and determine the appeal in respect of each impugned conviction and sentence. Analysis 64.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 65.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated the following on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 66.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 67.Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 68.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 69.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 70.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair re-evaluation of the case. 71.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence. 72.An Appellant on first appeal is entitled to expect the evidence as a whole submitted to fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The Court of Appeal in Kiilu & Another –vs- Republic [2005] 1KLR 174, stated as hereunder:An Appellant on first appeal is entitled to expect the evidence as a whole submitted to fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of the first appellate Court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses. 73.I shall deal with counts 2 and 3 together and then proceed to count 4. The appeal raises interesting issues that it will be prudent to deal with the same seriatim. First, it is not in doubt that the appellant and the complainant met on the material day. Having dismissed count 1, it is unnecessary to deal with it. However, the evidence raised one question: the evidence tendered by PW1 differed fundamentally from the charges. Section 11A of the Sexual Offences Act provides as follows:Any person who commits an indecent act with an adult is guilty of an offence and liable to imprisonment for a term not exceeding five years or a fine not exceeding fifty thousand shillings or to both. 74.An Indecent Act is also defined as follows:“Indecent act" means any unlawful intentional act which causesa.any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;b.exposure or display of any pornographic material to any person against his or her will; 75.On the other hand, sexual assault was charged under count. section 5(1)(a)(i) of the sexual offence provides as follows:(1)Any person who unlawfully-a.Penetrates the genital organs of another person with-i.any part of the body of another or that person; or 76.The court found that evidence was not corroborated. However, the court relied on section 124 of the Evidence Act. The section is not and cannot be a replacement for the burden of proof as provided in our constitutional order. The provision cannot be used to cure evidentiary gaps, resolve material inconsistencies, or compensate for deficiencies in the prosecution case. Where doubts remain as to the credibility, reliability, or sufficiency of the evidence, the prosecution fails regardless of the absence of a legal requirement for corroboration. 77.The trial court therefore erred if it treated section 124 as a replacement for, or dilution of, the constitutional burden and standard of proof resting upon the prosecution. The state had a burden of proof. The most oft-quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462, p. 481, comes in handy in describing the legal burden of proof in criminal matters, that;“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 78.The Appellant submitted that the complainant testified that, after the alleged incident, she was accompanied by a motorcycle rider to Ruringu Police Station. According to her testimony, the police frustrated her, resulting in the report being formally re-reported at Nyeri Central Police Station 4 days later. It is clear that the complainant did not seek any kind of treatment. There was no explanation offered for making a fresh report when there was an original report at Ruringu police station. 79.The complainant did not seek treatment at any medical facility and only attended for the completion of a P3 Form. The P3 Form, prepared on 10.05.2022, indicated that there were no injuries on her general body. Similarly, the Post Rape Care (PRC) Form, prepared on 05.05.2022, also recorded no physical injuries. Therefore, the allegations that the complainant had been slapped were not supported by the medical evidence. There was no medical evidence establishing any bodily injury. While expert medical evidence is relevant in judicial proceedings, it is neither conclusive nor binding on the court. The weight to be accorded to such evidence must be considered alongside the entirety of the evidence on record. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so. 80.The essence of expert evidence was addressed in the case of Kimatu Mbuvi T/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] KECA 130 (KLR), the Court of Appeal [R.S.C. Omolo, P.N. Waki and W.S. Deverell] where the court held that:We have stated before, and it bears repeating, that such opinions are not binding on the court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified. But a court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so. In Ndolo v Ndolo [1995] LLR 390 (CAK), this Court stated: -“The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decisions. A court cannot simply say: “Because this is the evidence of an expert, I believe it” 81.Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them, as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it." 82.That the complainant's failure to seek medical treatment following the alleged incident casts doubt on the credibility and truthfulness of her account. An appellate court will not ordinarily interfere with such findings on the credibility of witnesses unless they are plainly wrong or unsupported by the evidence on record. The complainant testified that she did not remember the name of the motorcycle rider who accompanied her. This witness alleged to have seen what was happening. Nevertheless, she explained that she had provided his name and telephone number to the police officers at Ruringu Police Station, although she did not furnish the same details to the officers at Central Police Station. Why didn’t she find it necessary to retrieve details of this crucial witness from Ruringu police station? This same rider called the complainant’s mother. Why wasn’t his number retrieved from the mother? This omission materially undermined her credibility and the substance of her evidence. 83.The Court notes that, according to the complainant, some of the events following the alleged offences occurred in the presence of a boda boda rider. The complainant testified that it was this rider who informed her of the appellant's name and later accompanied her to Ruringu Police Station. The complainant further testified that she subsequently reported the matter at Nyeri Central Police Station, but on that occasion, she was accompanied by a different person. 84.This sequence of events raises legitimate questions. If the complainant initially reported the matter at Ruringu Police Station, it is not clear why the matter was not pursued there. The explanation offered by the complainant, that she was frustrated by the officers at Ruringu Police Station, was unclear and not elaborated on. No evidence was tendered as to the nature of the frustration, whether a report was entered in the Occurrence Book, or why the complainant did not obtain the necessary medical documentation, including a P3 form, through that station. The evidence recorded in that station is not part of the evidence recorded or transferred to the Central Police Station. 85.The state did not tender evidence of arrest that could render credence to the allegation. The complainant stated that she identified the appellant at the police station by face. Surely, these are people who were together less than 5 days earlier; why not by name? In the circumstances, the Court finds the explanation less than satisfactory. The Court considers that the evidence available immediately after the alleged incident was potentially crucial. At that stage, the complainant was accompanied by a person whom she described as a witness to at least part of the events and who allegedly possessed information relevant to the identification of the appellant. According to the complainant, the boda boda rider was willing to assist and accompanied her to the police station. However, the rider was never called as a witness and no explanation was offered by the prosecution for his omission. 86.The failure to call the boda boda rider assumes greater significance in the circumstances of this case. The complainant was not the sole person with knowledge of the events immediately following the alleged incident. The rider was a potentially material witness whose evidence may have shed light on the complainant's condition, her immediate complaint, the identification of the appellant, and the sequence of events leading to the police report. His absence left an evidentiary gap which the prosecution did not address. It must be recalled that there is no number of witnesses required to prove a fact. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:-“No particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for proof of any fact.” 87.There is no requirement to call a superfluity of witnesses. However, there must be at least a bare minimum of witnesses to prove a charge. Where key witnesses are not called and the case is wholly, an adverse inference must be drawn for failure to call them. In the circumstances of this case, failure to call the boda boda rider resulted in a break in the chain of evidence. DW2 placed the appellant at home and, with evidence of payment of a fare of Ksh 100/=, as postulated by the appellant, away from home on the material day and time. There is no witness connecting the appellant to the alleged crime. In the case of Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR), the Court of Appeal [S.E.O. Bosire, P.N. Waki & J.W. Onyango Otieno] posited as follows:The law as it presently stands is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be averse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). 88.The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135, the court held inter alia:The prosecution is not obliged to call a superfluity of witnesses, but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.” 89.In the circumstances, failure to call the boda boda rider and the investigations that were done at Ruringu raises doubt on the veracity of the evidence of PW2. The evidence of PW1 indeed supports the defence case. It is not known why the state chose not to produce any evidence related to the phone and the M-Pesa statement from the complainant’s side. Failure to produce the same must be construed negatively against the prosecution. Had that evidence been produced, it may have been unfavourable to the state. 90.Further, the medical evidence did not reveal physical findings supporting some of the allegations made by the complainant. While the absence of injuries is not by itself conclusive, it rendered the testimony of independent witnesses all the more important. The omission to call the boda boda rider therefore weakened the prosecution case. 91.As regards the complainant's credibility, the trial court found that she remained firm and consistent during cross-examination. This Court is mindful that an appellate court should be slow to interfere with findings on demeanour and credibility unless it is shown that the trial court was plainly wrong or that the findings were unsupported by the evidence on record. Accordingly, this Court does not lightly depart from the trial court's assessment of the complainant's demeanour. 92.Nevertheless, the Court notes certain inconsistencies. The complainant testified that she could not remember the name of the boda boda rider. At the same time, she stated that she had provided both the rider's name and telephone number to the police at Ruringu Police Station. However, there is no evidence that the same information was furnished to the officers at Nyeri Central Police Station, nor is there evidence that any effort was made to trace or call the rider as a witness. This omission raises doubt as to why a witness who was readily available at the earliest stage of the investigations was ultimately excluded from the prosecution case. In the circumstances, the Court finds that the failure to call the boda boda rider was a significant omission that must be taken into account when evaluating whether the prosecution proved its case beyond reasonable doubt. 93.There was thus no evidence on record to support counts 1 and 2. Where there are two witnesses as in this case, and section 124 of the Evidence Act is ousted by supervening factors. Further, the section deals only with exceptions related to sexual offences. It does not cover robbery with violence. 94.I find and hold that there was no evidence on record capable of sustaining convictions on Counts I and II. There were two material witnesses to the alleged offence, that is PW1 and the bodaboda rider. Where there are two or more material witnesses, as was the case here, the exception under section 124 of the Evidence Act is inapplicable where there are supervening circumstances that call for corroboration or otherwise undermine reliance on the sole testimony of a complainant. In any event, section 124 of the Evidence Act creates an exception applicable only to sexual offences and does not extend to the offence of robbery with violence. 95.Therefore, PW1 being the only witness testifying, the court failed its duty to warn itself of the dangers of relying on a single witness. In the case of Maitanyi v Republic [1986] KECA 39 (KLR), the Court of Appeal [Nyarangi, Platt & Gachuhi JJA] posited as follows:Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:-“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”In this case there is no other evidence, circumstantial or direct. The decision must turn on the need for testing with the greatest care the evidence of this single witness 96.Even where there are exceptions on a single witness, the same should be tested with care. It is not enough to believe. This was so held in the case of Roria v Republic [1967] EA 583, where the East Africa Court of Appeal held that:Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care. 97.The third aspect is the appellant’s defence. He tendered evidence on how they finished well and proceeded to her mother before coming back to work. 98.The exhibit number 2 tendered confirmed that he paid Patrick Gichuki at 23.57.30. He had indicated that he had left and gone home. If this was not true, it was the duty of the state to rebut that evidence. Indeed, the evidence shows that he was in Viceroy Bar and Restaurant until late at 8.26 am on the following day. This is in line with the evidence of DW2, that the son went back after about 30 minutes. The sending of Ksh 1,000/= was at 23.17.30. 99.The Court further notes that the complainant admitted that she paid for the drinks consumed by both herself and the appellant. While this fact is not determinative of the issues before the Court, it forms part of the surrounding circumstances that require careful scrutiny. Significantly, the complainant did not provide a clear timeline of events from the time they left the bar to the time they arrived at the alleged scene of the offence. The evidence is therefore lacking in specificity as to the duration of the journey, the movements of the parties, and the sequence of events leading to the alleged offences. Such details would have assisted the Court in testing the consistency and reliability of the prosecution case. 100.The investigating officer did not produce the complainant's mobile phone records, M-Pesa statement, or any extracted data from her phone. Consequently, the Court is left to speculate as to what information those records may have revealed. In particular, it remains unclear whether the complainant continued using her phone after it was allegedly taken from her, whether the phone ceased functioning, whether it was traced, or whether any investigations were undertaken regarding its usage after the alleged robbery. 101.The evidence concerning the transfer of Kshs. 1,000/= is also contested. The complainant testified that she sent the money because she had been threatened by the appellant. The appellant, on the other hand, maintained that the money was voluntarily sent as a tip or facilitation fee in connection with efforts to assist the complainant secure employment through Queen T. 102.In those circumstances, the production of the complainant's M-Pesa statement, phone records, or other electronic evidence would have been particularly important. Such evidence may have shed light on the communications between the complainant, the appellant, and Queen T, the context of the transfer, and whether the payment was consistent with coercion or with a voluntary transaction. The failure by the prosecution to produce this evidence left a material gap in the case. 103.While the prosecution is not required to call every witness or produce every conceivable document, it must place before the Court the best available evidence necessary to establish the charge beyond reasonable doubt. Where readily available documentary or electronic evidence is not produced, and its absence is unexplained, the Court is entitled to draw an inference favourable to the accused where the missing evidence could reasonably have clarified a contested issue. 104.Accordingly, in the absence of the complainant's phone records, M-Pesa statements, or other electronic evidence capable of explaining the circumstances under which the Kshs. 1,000/= was transferred, the Court finds that doubt remains as to whether the transaction was the product of coercion, as alleged by the complainant, or a voluntary payment, as asserted by the appellant. That doubt must, in keeping with the criminal standard of proof, be resolved in favour of the appellant. 105.This leaves the third count. This was robbery with violence. The prosecution needed to prove a case against the Appellant. Section 296(2) of the Penal Code provides as follows: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. 106.The court is enjoined to analyse both the prosecution and defence evidence before coming to a conclusion. I cannot thus ignore either evidence. This was well captured in the case of by J M Mativo, J, as he was then, in the decision of Ndeka v Republic (Criminal Appeal E007 of 2021) [2022] KEHC 3 (KLR) (19 January 2022) (Judgment) as doth:12.A trial Court has a duty to weigh the evidence adduced in court by all the parties in totality and make a finding on the culpability or otherwise of the accused. Choosing to analyse the prosecution evidence and leave out that of the accused is a fatal mistake. It’s a duty bestowed in every Court to weigh one set of evidence (prosecution) against another (defence) before arriving at a conclusion. This is the basic calling of every Court without exception. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating the accused is true. The correct approach is to consider the alibi in light of the totality of the evidence in the case and the courts impression of the witnesses. It is acceptable in totality in evaluating the evidence to consider the inherent probabilities and improbabilities.13.The court is required to take proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt. 107.The Appellant submitted on material contradictions, discrepancies and inconstancies in the evidence of the Respondent. On this, this court has to establish whether the alleged discrepancies and contradictions were fundamental as to cause prejudice to the Appellant. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) ] the court of appeal [Tunoi, Lakha & Bosire JJA] held as follows:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 108.Material discrepancies and inconsistencies are one of the parameters that could work to weaken the burden of proof. The Respondent also had to prove the use of violence on PW 2. PW1 did not suffer any injury at all. Secondly, no dangerous weapon was used. Whereas a dangerous weapon was not proven, the use of violence was to be proved beyond reasonable doubt and/or that the Appellant was in the company of others at the time of the attack. The Court of Appeal in Peter Mwangi Kamau v Republic [2013] KECA 250 (KLR), [Kariuki (PCA), Ouko, Murgor, JJ.A] stated as follows:It is also clear from the record that, the robbers were in possession of a pistol, a dangerous weapon and with iron bars which were used to inflict harm upon PW1. Thirdly, they did in fact inflict violence upon PW1 and PW2 in the course of the robbery. Any one of these three ingredients was sufficient to support a conviction of the appellant with the charge of robbery with violence. 109.The appellant alleged discrepancies to establish whether the alleged discrepancies and contradictions were fundamental enough to cause prejudice to the Appellant. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held:In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 110.Even if the facts as pleaded were to be true, there was no violence used in order to enable stealing. There was no scintilla of evidence that the phone was stolen. Unlike sexual offences, robbery with violence must be corroborated. Medical evidence does not show any violence. There was no evidence of loss of phone or even ownership of the said phone. No IMEI was produced, nor was there any report from the service providers linking the complainant’s number to that of the phone. There also needed to be evidence that the phone was taken by the appellant. It can be direct or circumstantial evidence. For circumstantial evidence to work, it must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), the Court of Appeal [P. Kihara Kariuki, PCA, M’Inoti & Murgor, Jj.A] had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21:It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it. 111.The trial court strained to find evidence of violence in order to sustain the conviction for robbery with violence. In the absence of evidence establishing violence connected with the alleged theft, the trial court improperly relied on allegations relating to attempted rape or other sexual conduct to satisfy the element of violence required for the offence of robbery with violence. The complainant's evidence was that the threat made against her was directed towards raping her and not towards facilitating the theft of her property. The charge of attempted rape was rightly dismissed by the trial court, and, having done so, the court could not rely on the same allegations to establish the violence necessary for the offence of robbery with violence. There was not a scintilla of evidence that any violence was inflicted upon the complainant for the purpose of stealing or facilitating the theft. It is not sufficient that violence be shown in isolation; rather, the violence must be employed in the course of, or for the purpose of, committing the theft or retaining the stolen property. In the case of Wanjiku v Republic [2024] KEHC 4184 (KLR), where GL Nzioka, J, held as follows:In conclusion, I find that the evidence adduced as regards the accused can only sustain a charge of assault contrary to section 251 of the Penal Code and a charge of causing grievous harm contrary to section 234 of the Penal Code in relation to count 2.35.The provisions of section of 179 Criminal Procedure Code allow the court to convict an accused person of a lesser offence if the evidence proves the same though he was not charged with that offence. Therefore, I set aside the conviction of the appellant of the charge of robbery with violence contrary to section 296(2) of the Penal Code and substitute it with the aforesaid offence under section 251 and 234 respectively. 112.It must be understood that not every act of violence amounts to the offence of robbery with violence. Without proof of theft or an intention to steal, it is insufficient to establish the offence. The prosecution failed to adduce evidence proving that any property was stolen or that the alleged violence was employed in the course of, or for the purpose of, committing a theft. I therefore hold and find that the essential ingredients of the offence of robbery with violence were not established and that the conviction was therefore unsafe. The appeal on conviction is accordingly allowed. 113.There was an appeal on sentence. If the offence had been proved as pleaded, it could only have amounted to simple robbery under 296(1), which provides as follows:(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years. 114.I will set aside the sentence of 50 years. I would have sentenced the appellant to 10 years. However, the conviction has been set aside. Consequently, there is no need to deal with the sentence. I am aware that the court cannot interfere with the sentencing discretion. However, 50 years was excessive in any case. In the case of Wanjema vs Republic [1971] EA 493, the Court stated as follows regarding interference with sentencing:The Appellate Court should not interfere with the discretion which a trial court exercised as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on a wrong principle, or the sentence is manifestly excessive in the circumstances of the case. 115.The upshot of the foregoing is that the appeal is merited and allowed. Both sentence and conviction are set aside. Orders 116.The consequence of the foregoing is that I make the following orders:a.The appeal on conviction and sentence is allowed. The conviction and sentence are set aside.b.The appellant is set free unless otherwise lawfully held.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF JULY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mr. Kihara for the StateNanjala for the AppellantAppellant presentCourt Assistant – Timothy