https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1492

**IN THE COURT OF APPEAL** **AT NAKURU** **[CORAM: MATIVO, GACHOKA & MURUNGI, JJ.A]** **CRIMINAL APPEAL NO. E021 OF 2024 BETWEEN** **PAUL NJOROGE WANGARE APPELLANT** **AND** **REPUBLIC RESPONDENT** *(An appeal from the judgment of the High Court of Kenya at Nakuru (M. T. Matheka J.) dated 9th October 2020* ***in*** ***HCCR.A NO. 9 of 2018)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\**** **JUDGEMENT OF THE COURT** 1. On the night of 10/11th December, 2019 there was a wave of robbery incidents at Ngondu Estate, Egerton targeting students of Egerton University College - Njoro, who resided in estates outside the university. The robberies were carried out by two persons one armed with a metal bar and the other with heavy wooden stick. They used violence in the course of robbing their victims. One of the victims Noah Kipngetich was viciously attacked. He sustained head injuries from which he died. Police from Njoro police station were called and responded to the distress call. No. 44944 PC John Chacha [PW 7] with Mutunya went to the scene in GK891G but found the two robbers had left. While at the scene, Sammy Kweto came and reported that he had met with two people on his way home from college, one armed with a metal bar and the other a wooden stick who injured him and stole his phone, 3 head phones, his bag, laptop, extension cable, LPN cable and a black and orange laptop bag. 1. Early in the morning on 11th December, 20219 at about 5.00 A.M PC John Chacha [PW7] saw two people on the road as they were coming from Sumat Farm whom they suspected. One of the suspects had a suit case on which he sat. The other was walking and went and stood near to the one sitting on the suit case. As the police officer approached one of the suspects saw him and fled, leaving behind the other who turned out to be the appellant John Njoroge Wangare with the suitcase. The appellant also tried to escape when he discovered that Chacha was a police officer but submitted when the officer told him that he would shoot him if he continued with his bid to escape. The appellant sat down and was handcuffed. 1. The police officers recovered a number of items at the scene including; a suit case, four gas cylinders, a bag with laptops and several mobile phones. Some of the phones were found in the appellant’s pockets. PC Chacha prepared an inventory of the recovered things and the appellant signed the inventory. PC Chacha then asked the Appellant to take him to house but the Appellant did not take him there. Instead he took the officer round and round. The officer arrested him and took him to the police station. 2. The victims of the previous night’s robbery were asked to go to the police station to see whether any of the recovered items were those they lost in the previous night robberies. They went to the station. PW1 identified his stolen laptop, electric socket, extension cable, key board and head phones. PW2 identified his stolen phone Techno H6, PW3-his Samsung mobile phone and 6 kg gas cylinder, PW4- Techno Phone and laptop, PW5 -Mobile Phone. The phone stolen from Noah Kipngetich [the deceased] was also identified by his roommates. 1. The appellant was then arraigned at the Chief Magistrate ‘s Court at Nakuru and charged with five counts of robbery with violence contrary to Section 295 as read with Section 296[2] of the Penal Code in ***Nakuru CMCR. Case No. 4067 of 2016***. He also faced five alternative counts of handling stolen property contrary to Section 322[2] of the Penal Code. He pleaded not guilty and the case proceeded to full trial before Hon. L. Gicheha [SPM]. The prosecution presented 8 witnesses to support its case while the appellant gave unsworn testimony and called no other witness in his defence. 2. At the end of the trial, the learned Senior Principal Magistrate found the appellant guilty and convicted him on all the five counts of robbery with violence contrary to section 295 as read with Section 296[2] in a judgment dated 19th January, 2018 and thereafter sentenced him to death. As regards the five alternative counts of handling suspected stolen property, the trial court found that no evidence was led in support thereof and acquitted him. 1. The appellant was aggrieved by the trial court’s decision and appealed to the High Court at Nakuru in ***Criminal Appeal No. 9 of 2018*** on three primary grounds and eight supplementary grounds contending that the learned trial Magistrate erred in law and fact by convicting the him on the basis of: 1. *evidence that was not substantially proved;* 2. *contradicting pieces of evidence;* 3. *failing to note that vital witnesses were not summoned to court . Additionally the appellant faulted the trial court for;* 4. *convicting him despite holding that the identification evidence was insufficient given that no identification parade was conducted;* 5. *convicting him without sufficiently interrogating the evidence of possession;* 6. *failing to note that the prosecution evidence was shrouded in controversy creating doubts which ought to have been resolved in his favor;* 7. *convicting him on the recent possession of items without considering that the witness who arrested him with the items was not credible and ought not to have been believed;* 8. *without considering his defence that the stolen items allegedly recovered from him were in the police vehicle* 9. *failing to properly analyze the defence evidence vis-vis the prosecution evidence in violation of the provisions of Section* *169 of the Criminal Procedure Code CAP 75 of the Laws of Kenya and ultimately; and* * 1. *failing to comply with Section 211 of the CPC. Based on those grounds he urged the High Court to allow his appeal,* *quash the conviction, set aside the sentence and set him at liberty.* 1. The High Court( M. Matheka J) heard and dismissed the appellant’s first appeal in a judgment dated 9th October, 2020 thus provoking the this appeal in which the appellant invites us to interfere with the concurrent findings of the two courts below and quash the conviction, set aside the sentence and set him at liberty. The appellant has cited 10 grounds contained in his supplementary grounds of appeal dated 31st May, 2026, supported by his written submissions and a list of authorities of even date. Briefly the appellant contends that the learned judge erred in law and fact in: 1. *holding that the appellant was properly identified despite glaring anomalies that precluded circumstances of any positive identification;* 2. *failing to note the prosecution witnesses contradicted themselves and watered down the credibility of their testimonies thus shrouding the whole trial in controversy;* 3. *misapplying the doctrine of recent possession when the elements of recent possession were not satisfied by the prosecution;* 4. *by improperly placing the appellant on his defence in the full knowledge that the trial court acted unfairly in not giving the appellant the opportunity of proving that he was not at the scene of the crime and that he could be innocent of the charges leveled against him;* 5. *In failing to note that the trial court had ordered the hearing to proceed with the remaining witnesses despite* *the charges being read afresh and prosecution witnesses PW1 and PW3 having testified notwithstanding that the charges against the appellant involved the said witnesses;* * 1. *failing to note the provisions of Section 214 C PC was not complied with and the noncompliance vitiated further testimony tendered by the prosecution;* 2. *failing to note that the provisions of Art.50[2] [c] were breached and the appellant was not given an opportunity to prepare to defend himself;* 3. *Failing to note that the prosecution case was marred with controversies that created doubt on its credibility;* 4. *Failing to note that the identification parade was conducted in breach of the force standing orders; and* 5. *failing to warn itself on the dangers of relying on identification when the circumstances as pertaining the instant case was dock identification.* 1. We heard the appeal on 24th March 2026. The appellant appeared virtually and was represented by Mr. Maragia learned counsel, while Mr. Omutelema learned Senior Assistant Director of Public Prosecution appeared for the respondent. Both parties relied on their written submissions and cited case law which we have considered together with the grounds of appeal and the record of appeal. 2. We note that though the appellant’s grounds of appeal are wide ranging encompassing matters of law and fact, what is before us is a second appeal from the concurrent findings of the trial and first appellate court. That being the case, our jurisdiction is limited to dealing with matters of law. This position has been settled and cemented in a long line of cases including ***Hamisi*** ***Mbela Davis & Anotherb vs. Republic*** [2012] KECA 147 KLR where it was stated: “*This being a second appeal, this Court is mandated under Section 361[1] of the Criminal Procedure Code to consider only issues of law*” and ***M’Riungu vs. Republic*** [1983] KLR 445, where it was held: ***“Where the right of appeal is confined to questions of law, an appellate court has royalty to accept the findings of fact of the lower courts and resist the temptation to treat the findings of fact as holdings of law or mixed findings of fact and law, and it should not interfere with the decision of the trial or first appellate court unless it is apparent that on the evidence ,no reasonable tribunal could have reached that conclusion ,which would be the same as holding that the decision is bad in law [Martin vs Glyneed Distributors ltd [t/s MBS Fastenings].’’*** 1. We shall thus confine ourselves to our mandate as circumscribed by Section 361[1] of the CPC and avoid venturing into factual matters that have been settled by the two courts below. Grounds 1, 9 and 10 in the appellants supplementary grounds fault the learned judge for allegedly holding that the appellant was properly identified, failing to note that the identification parade was conducted in breach of the force standing orders and to warn herself of the danger of relying on the evidence of identification where the circumstances involved dock identification. 1. We observe that those grounds are not supported by any material on the record. What is on record is that the trial court categorically stated that the evidence on identification cannot be relied on in the case because “*the accused person was shown to the witnesses and therefore no identification parade was conducted*.” This position was upheld by the first appellate court which observed as follows at paragraph 20 in the impugned judgement: ***“In its judgement the trial court found that the identification was not proper but relied on the strength of the evidence of recent possession placing the Appellant at all the five robberies. On the basis of this the Appellant was convicted.’’*** 1. On its part the trial court, upon finding that it was not in dispute that robberies did take place on the night of 11th December, 2016 and the robbers were armed and used personal violence on victims leading to the death of Noah as confirmed by the evidence of his roommates PW2, PW3 and PW4 and that the evidence of identification cannot be relied upon addressed the basis on which it convicted the Appellant at page 35 of the record as follows: ***“The issue is whether there is any evidence linking the accused to the robbery. According to PW6 the investigating officer they arrested the accused person on 12/12/2016 with a suit case and laptop. PW1 and PW5 were called to the police station and they identified the items stolen from them. PW1 identified his laptop, electric socket, extension cable, key board, laptop bag and head phone. PW2 identified his techno H/6.PW3 identified Samsung mobile phone, 6 kg gas cylinder, PW4 identified his techno phone and laptop and PW5 identified his mobile phone.*** ***PW1, PW2 , PW3, PW4, PW5 also produced documents to confirm that the items they identified belonged to them and that they were the items they had reported to the police as having been stolen. The accused alleged that he found the items inside the vehicle when he was arrested.*** ***However PW7 produced an inventory of the list of the recovered items which was duly signed by the accused. The said inventory states that the said items were recovered in possession of the accused on11/6/16 at 4.45 am.*** ***In his defence he does not state that he was forced or intimidated into signing the said inventory, which means he signed it willingly. The said items having been recovered about five hours after the robbery, it means that though the prosecution was not able to prove identification, the doctrine of recent possession applies. The most probable reason why the accused*** ***was in possession of the items stolen from PW1 to PW4 between 10.-10.30 pm is that he was involved in the said robberies.’’*** 1. It is thus patently clear from the judgments of the two courts below that the decision to convict and to uphold the conviction and sentence was not based on a finding of identification of the appellant by any of the prosecution witnesses. On the contrary, the evidence of identification was properly rejected and the two courts arrived at their concurrent findings of guilty based on the doctrine of recent possession. 2. The appellant was found in possession of the items stolen from PW1, PW2, PW3, PW4, PW5 and the deceased Noah Kipngetich in the morning barely a few hours from the time when they were violently taken away from them. He signed the inventory of the items recovered from him and told the investigating officer that he was misled in participating in the robbery. His defence that he found the items in the police car and the investigating officer framed him because he did not give a bribe was considered and found to be an afterthought. 3. We are satisfied that the two courts below correctly evaluated and analysed the evidence tendered at the trial. The trial court noted as follows upon evaluating the evidence tendered by both the prosecution and the defence: ***“The accused does not state that he was forced or intimidated into signing the inventory, having signed the inventory of the recovered items about 5 hours after the robbery it means that though the prosecution were not able to prove identification, the doctrine of recent possession applies. The most probable reason why the accused was in possession of the items stolen from PW1, PW2, PW3, PW4 and PW5 between 10.00 and 10.30 PM is that he was involved in the robberies.”*** 1. It is trite law that a court can rely on the doctrine of recent possession provided that there is positive proof that the property was found with the suspect, that it was reported that the property was stolen, was positively identified and was recently stolen from the complainant. [See ***Robert Obara*** ***Langa vs. Republic*** [2015] eKLR. Having carefully considered the record we agree with the two courts below that there is no doubt that some of the items recovered from the appellant and contained in the inventory signed by the appellant of his arrest and identified by PW1, PW2, PW3 and PW4 overwhelmingly led to the inference that the appellant was one of the persons who violently robbed the complainants and their deceased colleague on that fateful night. 1. The report from Safaricom exhibit 2 confirmed that some of the phones recovered belonged to the victims as follows: Techno C6 belonged to justice, Techno C9 to Kipkoech and Techno C 8 to the deceased Noah Kipngetich. 2. After reevaluating the record of the proceedings at the trial court, the first appellate court noted that the Appellant was arrested a few hours after the robberies with some of the stolen items belonging to the complainants and the police had no plausible reason to frame the Appellant. Ultimately the judge found that the chronology of events overwhelmingly lead to the conclusion that the Appellant was one of the robbers because he was found with some of the items recovered from the complainants 3. We are therefore satisfied that the appellant was correctly and properly convicted and there was no error of law committed by the first appellate court when it dismissed his first appeal against conviction and sentence. In the upshot, we find that the appeal is completely devoid of merits and hereby dismiss it. **Dated and delivered at Nakuru this 24th day of July, 2026** **J. MATIVO** **....................................** **JUDGE OF APPEAL** **M. GACHOKA C.Arb, FCIArb.** **....................................** **JUDGE OF APPEAL MURUNGI B. KAIRARIA** **...................................** **JUDGE OF APPEAL** *I certify that this is a True copy of the original* *Signed* ***DEPUTY REGISTRAR***