https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6680

Lobali v Republic (Criminal Appeal E003 of 2025) [2026] KEHC 6680 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6680 (KLR) Republic of Kenya In the High Court at Maralal Criminal Appeal E003 of 2025 AK Ndung'u, J May 15, 2026 Between William Lobali Appellant and Republic Respondent (Being an Appeal from the conviction and sentence in Maralal CMCRCC No. E255 of 2024 delivered by Hon. T.A Sitati on 23rd April 2025) Judgment 1.The Appellant was charged with the offence of Robbery with Violence contrary to section 296 (2) of the Penal Code. The particulars of the offence were that on 20th August, 2024 at 7 am, in Maralal town within Samburu Central Sub-County of Samburu County, jointly with others not before the court, he robbed Joshua Mutiga of a mobile phone Samsung valued at Kshs 15,000/- and cash Kshs 5,000/- and immediately before and immediately after the said robbery used actual violence on the complainant. 2.The Appellant pleaded not guilty and the matter proceeded to full hearing. I must note that he represented himself as, per the record of the trial court, there was no pro bono advocate who could be allocated the matter. 3.The prosecution called 4 witnesses in support of its case whereas the Appellant opted to give unsworn testimony and called no witnesses in support of his case. Upon considering the evidence tendered in court, the testimonies of the witnesses and the submissions of the parties, the trial magistrate convicted the Appellant of the main charge. Upon considering his mitigation and the circumstances of the case, the trial magistrate sentenced the Appellant to death. 4.Being dissatisfied with the conviction and sentence, the Appellant instituted the present Appeal vide an undated Petition of Appeal premised, in a nutshell, on the following grounds;1.That the learned trial magistrate erred in law and in fact by sentencing the Appellant to a sentence term that is not only harsh but excessive on light of the facts and the circumstances of this case.2.That the learned trial magistrate erred in law and in fact by failing to find that the prosecution did not provide the ingredients of the offence beyond reasonable doubt. 5.The Appeal was canvassed by way of written submissions. The Appellant filed submissions dated 1st September 2025 whereas the prosecution filed submissions dated 28th October 2025 through Principal Prosecution Counsel Martin Mwongera. 6.The Appellant opened his submissions by listing what he termed ‘Amended Grounds of Appeal’. He urged that he sought to amend his grounds of Appeal pursuant to Section 350(2)(v) of the Criminal Procedure Code and further asked that his Appeal be heard and determined on the following grounds instead of those earlier lodged at the initial time of petitioning;1.That , the learned trial magistrate erred in both law and fact by failing to find that the Appellant was not provided with a state funded advocate nor informed of his right to legal representation pursuant to Article 50(2)(g) and (h).2.That, the learned trial magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to find that the Appellant’s identification was not positive.3.That, the learned trial magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to appreciate that there was no identification parade conducted in respect of the Appellant.4.That, the learned trial magistrate erred in both law and fact by convicting the Appellant in the present case yet failed to appreciate that the photographs taken at the scene of the accident were never taken by a scenes of crime officer neither did they provide a nexus between the Appellant and the offence.5.That, the learned trial magistrate erred in both law and fact by convicting the Appellant yet failed to find that the motor vehicle and other paraphernalia found at the scene was never dusted for fingerprints and thus could not provide the necessary proof that the prosecution require to connect the Appellant with the offence herein.6.That, the learned trial magistrate erred in both law and fact by dismissing the Appellant’s defence which was cogent and believable and raised credible doubt of the strength of the prosecution’s case.7.That, the death sentence imposed on the Appellant was both harsh and excessive since the mandatory nature of the same has been declared unconstitutional in Ramadhan & 8 others v General & another [2024] KEHC 1173 (KLR) and Mbugua & 9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR). 7.In his submissions, the Appellant urged that there was a violation of the right to legal representation as he was never provided with an advocate at the state's expense, or informed of his right to legal representation pursuant to Article 50(2)(g) and (h). He submitted that the Constitution of Kenya, 2010 provides a robust framework for the protection of fundamental rights and freedoms, including the right to a fair trial. Further, that Article 50(2)(g) is the cornerstone of the right to legal representation for accused persons. He posited that Article 49(l)(c) deals with the rights of arrested persons and that while not directly about legal aid, it underscores the importance of understanding one's rights, which includes the right to legal counsel. He also submitted that Article 49(l)(d) further strengthens the right of arrested persons which right is meaningless for an indigent suspect without the means to secure legal representation. 8.The Appellant urged that Article 25 lists rights that cannot be limited, including the right to a fair trial. That the right to legal representation is an essential component of a fair trial, particularly in serious cases like robbery with violence. Additionally, that the threshold for the state to provide an advocate is "if substantial injustice would otherwise result." While this requires judicial interpretation, the gravity of the offence of robbery with violence, the potential lengthy sentence, and the complexity of legal proceedings inherently suggest that substantial injustice is likely to result if an indigent suspect is unrepresented. 9.The Appellant urged that Kenya is a signatory to several international human rights treaties that reinforce the right to legal representation, particularly for indigent accused persons. He submitted that under the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(d) clearly establishes the right to state-funded legal aid for indigent individuals when the interests of justice require it. Additionally, that the African Charter on Human and Peoples' Rights (ACHPR), Article 7(l)(c) , while not explicitly mentioning state funding, provides that the right to defence is fundamental and for indigent individuals, which right is effectively denied without state assistance. He maintained that these international instruments, which Kenya has ratified, are part of the law of Kenya under Article 2(5) and (6) of the Constitution. Therefore, the state has an obligation to ensure that these rights are given effect. 10.The Appellant urged that Kenyan courts have progressively interpreted and applied the constitutional and international provisions concerning the right to legal aid, citing David Mugo vs Republic [2015] eKLR, Republic vs Jackson Ndolo Mutuka & 5 Others [2016] eKLR and Republic vs Mohamed Abdow Mohamed & 4 Others [2017] eKLR in this regard. He urged that the lack of provision to the Appellant of state-funded legal representation resulted in profound and detrimental effects on his case, whose net effect was substantial injustice. 11.The Appellant submitted on ground 2 to 5 jointly. He stated that the identification of the Appellant was not positive. He reproduced the testimony of PW1, urging that when the complainant admits to being in a state of unconsciousness at the time of the incident, the reliability of such identification can be called into question. Further, that Kenyan case law emphasizes caution in such circumstances to ensure that convictions are based on credible evidence. He cited the decisions of the Court of Appeal in Karanja v Republic (1983) and the Supreme Court in Muiruri v Republic (2014) eKLR in this regard. He stated that PW1 further confessed that he never gave any description of the robbers to the police and further, that his evidence does not indicate that he made any description to the police, and a first report was not adduced to ascertain if he had actually identified his assailants. 12.He further submitted that the police did not conduct any identification parade in respect of the Appellant. He cited Wamunga v Republic (1989) [Kenya], Karanja v Republic (1983), and Muiruri v Republic (2014) on the need for corroboration when the primary identification evidence comes from a witness who was in a state of shock or distress. He maintained that the identification of the Appellant was not positive, emphasising that there were gaps in the Complainants’ memory due to the loss of consciousness. Additionally, he submitted that the court was not informed of the position of the spotlight relative to the accused and the complainant. That the length of time the complainant had to observe the accused under the spotlight is vital and that factors such as whether the observation was made at close range, whether the complainant had ample opportunity to observe the accused’s features, and whether the lighting conditions persisted long enough for a clear view should be scrutinized. 13.He urged that despite knowing the suspects, PW1 did not provide the names to PW5 at the first instance, which omission raises questions about the reliability and specificity of his identification. That the inconsistency may also imply that PW1's recognition was superficial or based on assumptions rather than clear identification. He further submitted that the investigation diary does not give three names and that the only name indicated was just ‘Waweru’. It is not clear which Waweru was being referred to and the inconsistency, where PW1 claims familiarity with the suspects but fails to identify or name them, weakens the credibility of his testimony regarding the identification or recognition of the Appellant. This inconsistency should be carefully considered by the court, and corroborative evidence should be sought to substantiate any claims of recognition or identification of the suspects. 14.The Appellant faulted the trial magistrate for failing to adequately consider the Appellant’s defence which was cogent and believable. That the prosecution's case hinged on the Appellant's presence at the scene of the accident and the alleged stolen vehicle. However, the prosecution failed to establish any nexus between the Appellant and the robbery. He stated that mere presence at the scene of an accident, even involving a stolen vehicle, does not automatically implicate the Appellant in the theft. Further, that the prosecution presented no evidence linking the Appellant to the theft or the stolen vehicle beyond the circumstantial evidence of his presence. He further submitted that the faulting of the Appellant for not providing a defence witness to corroborate his account of the accident by the trial magistrate was an error in principle. 15.It is urged that the burden of proof rests squarely on the prosecution and the Appellant's account of the accident, even if uncorroborated, should have been considered. He urged that the Appellant's claim of being a victim of a speeding vehicle's accident is a plausible defence, and the prosecution's failure to disprove this defence warrants acquittal. 16.On sentence, he urged that the death sentence was imposed without consideration of the unique fact and circumstances of the case and further, that the Appellant’s mitigation was never considered. He submitted that the constitutionality of the application of the mandatory death penalty for offences of robbery with violence under Section 296(2) of the Penal Code, and international human rights standards, was challenged in Mbugua &9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR) and Ramadhan & 8 others v General & another [2024] KEHC 1173 (KLR), decisions which have not been Appealed against or overturned to date. He stated that the mandatory nature of the death sentence violates the constitutional rights of the accused, particularly the right to a fair trial, equality before the law, and the right to life. Further, that the circumstances of this case do not demonstrate that the Appellant deserved the death sentence. he prayed that the court allow his Appeal as prayed. Respondents’ submissions 17.Learned Counsel for the prosecution submitted on the ground that the trial court failed to inform the Appellant of his right to representation, urging that Article 50 (2) (g) to choose, and be represented by, an advocate, and to be informed of this right promptly. He submitted that the Appellant was not informed by the trial court of his constitutional right to legal representation but after scrutinizing the lower court record, no substantial injustice was suffered by the Appellant by not being informed of this constitutional right. He cited the case of Manyeso v Republic (Criminal Appeal 12 of 2021 (2023) KECA 827 in this regard. 18.On identification, Counsel urged that the direct evidence adduced by PW1 and PW2 was credible to ascertain that the Appellant was positively identified as the perpetrator. The bright electrical light at Soko Hotel and daylight at 7am, made it possible for PW1 and PW2 to recognize the Appellant. He cited the decision in Katana & Ano vs. Republic (2022) KEC 1160 (KLR) in support of this submission. Additionally, Counsel submitted that the testimony of PW1 & PW2 clearly placed the Appellant as one of the assailants in the robbery and therefore, the Identification Parade was not mandatory. 19.Counsel submitted that on the issue regarding whether the trial court failed to appreciate that the photographs taken at the scene of accident were never taken by a scenes of crime officer, there were no photographs taken or produced as exhibits in this Appeal by the Investigating Officer (PW4). Therefore, this ground of Appeal is baseless and unsubstantiated. Additionally, on the issue of failing to find that the motor vehicle and other paraphernalia found at the scene was never dusted for fingerprints and thus could not provide the necessary proof that the prosecution require to connect the Appellant with the offence, he pointed out that the ground of Appeal was baseless and unsubstantiated by the Appellant as the Appeal is based on a case of robbery with violence in a hotel. 20.Counsel urged that the prosecution relied on evidence that is cogent, which the Appellant through his defence could not shake the evidence adduced by the prosecution. He stated that the Appellant opted to give unsworn statement as his defence and he did not call any witnesses and hence, the cogent prosecution’s case went unchallenged by the Appellant’s defence. He cited the case of Victor Mwendwa Mulinge vs R, [2014] eKLR on the burden of proving an alibi. 21.On the harshness of sentence, Counsel urged that Section 296 (2) of the Penal Code states that if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more person or persons, or if, at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. He stated that the trial court was right in sentencing the Appellant to the death sentence as the penal code has not been amended by Parliament, despite the numerous precedents declaring the death sentence as inhumane. He cited the decision of the Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR and Ogolla s/o Owuor vs Republic, (1954) EACA 270 in support of his submissions. 22.Counsel urged that the Prosecution adduced direct and documentary evidence linking the Appellant to the offence. The testimonies of PW1 and PW2, clearly place the Appellant at the scene of crime and that the ingredients for the offence of robbery, as set out in the case of Oluoch Vs Republic (1985) KLR were proved. That the Appellant was armed with a stone and a metal bar and was in the company of an accomplice. Further, that immediately before the robbery, he used actual force to steal Kshs. 15,000/- and a phone from the complainant. He urged that the prosecution relied on cogent and overwhelming evidence to prove the guilt of the Appellant and urged the court to uphold the conviction and sentence. 23.This being the first appellate court, my duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32. 24.The complainant, Joshua Mutiga, testified as PW1. It was his testimony that on 20th August, 2024, at 7am he went to his work place at Soko Hotel and while lighting up the jiko, a man suddenly jumped on him before hitting him with a metal bar. A second man then jumped on him and joined in the attack causing him to suffer injuries to the back and neck. As a result of the attack, he turned to face the assailant and recognized Lobali, the accused person, a man that had lived as his neighbour for 3 years. 25.He told the court that he saw him from the bright electric lighting in the kitchen where he was lighting up the jiko and, further, that the daylight had already broken out for clear visibility. He testified that two good Samaritans including Mbaabu chased off the robbers before he lost his consciousness. 26.The witness told the court that when he regained consciousness, he discovered that his cash Kshs 15,000 and phone had been taken away by the 2 robbers. He was assisted by Mbaabu and others to go to the police and later to the hospital where he got treated and discharged. He named the suspects to the police as Lobali and Kiptoo. After recording his statement, he returned to Maralal town for other activities and while in town, he spotted the 2 suspects roaming the town near Soko Hotel. When he saw them, he fled after the 2 men uttered death threats at him. Days later, he saw Lobali in a local bar and raised an alarm before citizens placed the suspect under immediate arrest and handed him over to the police. 27.During cross-examination, the witness reiterated that he had known the accused for many years and that he had no grudges against him. 28.PW2 was Charles Njuguna who testified that he was heading to his workplace when he entered Palkati Hotel for tea. While there, he heard screams from the backside and ran over to see what it was all about. On arrival, he found 3 men; the complainant; who was being attacked by 2 other men. He instantly recognized Lobali who struck the victim with stones while his accomplice used a metal bar. Later that day, he bumped into both suspects around the same location and they threatened him with death but he confronted the 2 men over their death threats. The confrontation attracted a large crowd forcing the suspect to flee. 29.PW3 was Irene Ntoiti, a clinical officer. She produced the P3 Form and treatment notes for the complainant showing that he suffered actual bodily harm from the cut wound to the right ear region which was bleeding. She stated that she stitched and dressed the wound and administered painkillers. In cross-examination, the expert stated that it was a slight cut consistent with a blunt force trauma. 30.PW3 was Police Constable Richard Rahani who was the investigating officer. He told the court that on 20th August, 2024, a robbery report was filed under OB 05/20/08/2024. He recorded the witnesses’ statements and issued the P3 Form which was duly filled. That on 25th August, 2024, he and 3 other officers namely PC Korir, PC Mwangi and PC Ng’ang’a arrested the suspect in Maralal town. In support of the case, the witness produced the investigation diary. 31.During cross-examination, the witness confirmed that the arrest was at Soko Mjinga area and that the suspect was intoxicated at the time of arrest and his accomplice was still at large. He pointed out that in the initial statement, the complainant had named "Kiptoo and his colleague” as the suspects. 32.Upon considering the testimonies of the prosecution witnesses and the evidence tendered in court, the trial magistrate found that the accused had a case to answer. He was then placed on his defence. 33.The accused gave unsworn testimony. He denied the charges and told the court that he was elsewhere in Yare attending to Samburu Cultural Festival on the date mentioned in the charge-sheet. That after the festival, he returned to Maralal town where he met Kiptoo at a bar for beers. The next day, he was arrested and these charges fabricated against him. 34.As afore stated, the trial court convicted the Appellant of the main charge and sentenced him to death. 35.I note that the Appellant Amended his Petition of Appeal under section 350(2)(v) of the Criminal Procedure Code. He did not seek leave so to do as envisaged in law. However since the state addressed these grounds in their submissions and noting that the Appellant is a pro se litigant, and there being no prejudice on the part of the state, the court shall overlook the legal infraction. 36.Upon considering the Petition of Appeal and the Submissions of the parties, I find the issues that arise for determination to be the following:i.Whether the Appellant’s Right to Legal Representation was violatedii.Whether the prosecution proved its case beyond reasonable doubt.iii.Whether the sentence was harsh/excessive in the circumstances. 37.I now proceed to analyze the above issues: Whether the Appellants’ Right to legal Representation was violated 38.It is not disputed that the Appellant was unrepresented during the trial. In fact, the trial magistrate aptly stated that the Appellant represented himself as no pro bono advocate could be allocated the matter. 39.Article 50 of the Constitution provides as follows: -(2)Every accused person has the right to a fair trial, which includes the right –(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense if substantial injustice would otherwise result, and to be informed of this right promptly. 40.The Legal Aid Act No. 6 of 2016 at Section 43 provides that it is the duty of the court to inform an accused person of this right as follows: -43.(1)A court before which an unrepresented accused person is presented shall -(a)promptly inform the accused of his or her right to legal representation; 41.The question that arises is whether the failure, by the trial court, to inform the Appellant of his right to legal representation and to be afforded a lawyer at the State’s expense could vitiate the proceedings before the trial court. 42.I have had due regard to the proceedings at trial specifically the manner in which the proceedings were conducted. I note that the Appellant competently participated in the proceedings and cross-examined all the Prosecution witnesses. I also note that he ably presented his defence and stated that he knew and understood the charge he was facing. Therefore, it is my considered view that there was no instance where the lack of legal counsel prejudiced the Appellant in any way as he understood and followed the proceedings from the onset of the trial to the end. I find no violation of his constitutional rights as he alleged. 43.Faced with a similar situation in Lemarleni v Republic (Criminal Appeal 14 of 2018) [2025] KECA 2154 (KLR) (11 December 2025) (Judgment) the court of Appeal expressed itself thus;“That said, the absence of such representation is not in itself fatal, unless it can be demonstrated that substantial injustice was occasioned. The record before us demonstrates that the Appellant actively cross-examined the prosecution witnesses and proceeded to call a witness in support of his defence. He therefore, in our view, fully participated in his trial and no prejudice or substantial injustice has been shown to have resulted from the lack of legal representation. This ground of Appeal accordingly fails.” 44.In David Njoroge Macharia v Republic, the Court of Appeal held that the right to legal representation at State expense under Article 50(2)(h) of the Constitution is not automatic in every criminal case but arises where substantial injustice would otherwise result. The Court observed that in determining whether substantial injustice would occur, regard must be had to the seriousness of the offence, the severity of the sentence likely to be imposed, the complexity of the case, and the personal circumstances and ability of the accused person to effectively conduct his own defence. The Court further recognized that the provision must be understood within the practical realities of available State resources and its progressive implementation. Consequently, the mere absence of State-funded counsel does not, of itself, invalidate a trial unless it is shown that the failure occasioned prejudice or rendered the proceedings unfair. 45.In the premises, the Appellant was not prejudiced in any way by lack of legal representation and therefore this ground of Appeal is fails. Whether the prosecution proved its case beyond reasonable doubt 46.Section 296 of the Penal Code provides as follows:“ 296.Punishment of robbery(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. 47.The above provision was elaborated by the Court of Appeal in the case of Oluoch vs Republic [1985] KLR in the following terms:“Robbery with violence is committed in any of the following circumstances:a)The offender is armed with any dangerous and offensive weapon or instrument; orb)The offender is in company with one or more person or persons; orc)At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person ………” 48.Further, in the case of Dima Denge Dima & Others vs Republic, 2013 eKLR, the Court of Appeal explained further as follows:“…The elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.” 49.It is therefore apparent that for a charge of robbery with violence under Section 296(2) of the Penal Code, it is not a requirement that all the 3 elements must be proved. Proof of any one of the 3 elements is sufficient to establish the offence. 50.Regarding the evidence presented, PW1 testified that on the material date at around 7.00 am, he was at his place of work, Soko Hotel, when he was attacked by two people including the Appellant. During the attack, he was able to see the face of the Appellant who he recognised as he had been his neighbour for three years. The Appellant and his accomplice were armed, with the Appellant using stones to attack the complainant and his accomplice was armed with a metal bar. I also observe that PW1’s evidence was corroborated by the evidence of PW2 who was clear that on the material date, he heard screams and ran over to the complainants’ place of work, from a neighbouring hotel to see what the issue was. He was clear that he saw the Appellant, a person he recognised, hitting the complainant with stones as his accomplice used a metal bar. 51.At the close of the prosecution case, the Appellant was placed on his defence and gave unsworn evidence. He raised the defence of alibi and claimed that he was elsewhere in Yare attending the Samburu Cultural festival. He however called no witness to substantiate the alibis. 52.The Appellant also challenged the issue of identification on the basis that the complainant lost consciousness during the attack and therefore could not reliably identify the Appellant as his attacker. The Court, in the case of Wamunga v. Republic (1989) KLR 424 at 426 stated as follows:“Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.” 53.Additionally, the Court of Appeal, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, stated that:“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. …………………….” 54.Regarding identification of the Appellants, in my view, the evidence in this case was watertight as the Appellant was placed at the scene of crime by PW1, and PW2. He was well known to the witnesses as these were people who were all from the same neighbourhood. PW1 was clear that there was electric lighting in the kitchen and further, that given that it was at 7am, there was some light from the sun and therefore, visibility was not an issue. From their testimonies, PW1 and PW2 clearly knew the Appellants well before the incident and easily recognized them. It is therefore my considered view that the lighting was sufficient enough for identification of the Appellants. 55.In the circumstances, I agree with Prosecution Counsel that there was no need for conducting an identification parade. I am also constrained to concur with the trial Magistrate that identification in this case was by way of recognition, which is generally agreed as the best form of identification. Further, according to the testimonies of PW1 and PW2, the Appellant used force and was armed with a dangerous weapon in the company of another person during the robbery. From the evidence of PW3, Irene Ntoiti, who treated the complainants’ injuries, it is not in dispute that the complainant sustained injuries during the robbery. 56.The Appellant placed considerable emphasis on the fact that his name was not mentioned in the first report made to the police, contending that such omission fatally weakened the prosecution case. While it is true that the first report is often important as it may lend assurance to the credibility of the complainant and the consistency of the prosecution case, the failure to mention the accused at that earliest opportunity is not, of itself, necessarily fatal. The court is required to evaluate the totality of the evidence on record and not to isolate one omission as determinative of the entire case. As was observed in Teresia Njeri & Another v Republic, the value of the first report lies in testing consistency, but each case must turn on its own facts and the court must examine whether the evidence as a whole proves the charge beyond reasonable doubt. Similarly, in Uganda v Sebyala & Others, [1969] EA 204 the Court held that discrepancies or omissions in the initial report do not automatically vitiate a conviction where the surrounding evidence sufficiently points to the guilt of the accused. (See also Terekali & Others v Republic (1952) 19 EACA 259). 57.In the present case, therefore, the omission to mention the Appellant in the first report does not by itself defeat the prosecution case; the court must take a wholesome view of all the evidence adduced to determine whether the charges were proved to the required standard. 58.I note that in his amended grounds of Appeal, the Appellant contended that the photographs at the scene of the crime were not taken by a scene-of-crime officer, and that the paraphernalia found at the scene and the motor vehicle were never dusted for evidence. However, there were no scene of crime photographs in this matter, or any motor vehicle involved and therefore, these grounds were baseless and misplaced. 59.On whether the Appellant’s defence was considered, I have reviewed his statement of defence in which he stated that he was not at the scene of the offence as he had travelled to Yare to attend a Samburu cultural festival. It is trite that an accused person bears no obligation to prove his innocence, the burden of proof throughout resting upon the prosecution. However, where the prosecution places before the court cogent and credible evidence establishing a prima facie case against the accused, the defence offered must be weighed against that evidence to determine whether it raises a reasonable doubt. 60.As was stated in Woolmington v Director of Public Prosecutions, (1935) AC. 462, the golden thread running through criminal law is that the prosecution must prove the prisoner’s guilt. Nonetheless, where the prosecution evidence is strong and consistent, a mere denial or an unsubstantiated alibi that does not cast doubt on that evidence cannot avail an accused person. The court must therefore examine whether the defence, though not required to prove innocence, sufficiently displaces the prosecution case or creates reasonable doubt as to the Appellant’s guilt.Top of FormBottom of Form 59.In the end, I find concurrence with the trial court on the culpability of the Appellant. The evidence adduced proved the offence beyond reasonable doubt. 60.In the circumstances, I find no material to fault the trial Magistrate for finding that the prosecution discharged its burden of proof to the required standard of reasonable doubt and that all the ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code were met. 61.I note that in his amended grounds of Appeal, the Appellant contended that the photographs at the scene of the crime were not taken by a scene-of-crime officer, and that the paraphernalia found at the scene and the motor vehicle were never dusted for evidence. However, there were no scene of crime photographs in this matter, or any motor vehicle involved and therefore, these grounds were baseless and misplaced. Whether the sentence was harsh or excessive 62.The Appellant was sentenced to death. Under Section 296(2) of the Penal Code cited above, the only one express and mandatory sentence prescribed upon conviction for the offence of robbery with violence is the death penalty. In Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court declared the mandatory nature of the death penalty as provided for in murder charges unconstitutional. The Supreme Court has since clarified and issued directions on the application of the said decision, directing that it applies strictly to murder cases under sections 203 and 204 of the Penal Code; Its application to other capital offences, including robbery with violence, is not automatic. The Supreme Court reiterated and restated these directions in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment). 63.Looking at the circumstances of this case, it is evident that the Appellant attacked the complainants in a heinous manner. Together with his accomplice, they beat him unconscious and could have cost him his life. I also take note of the mitigation of the Appellant which the court recorded before sentencing him including that he was a 1st offender who had no previous criminal records. I have also considered the crude nature of the weapons they wielded and used against the complainant and the value of the phone and cash said to have been robbed. I have considered the law, the mitigation put forth and the sentence imposed. 64.Sentencing is a matter that lies within the discretion of the trial court, and an appellate court will not lightly interfere with that discretion unless it is shown that the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, or that the sentence imposed is manifestly excessive or manifestly lenient in the circumstances. 65.This principle was well stated in Wanjema v Republic [1971] EA 493, where the Court held that an appellate court should not interfere with sentence merely because it would itself have passed a different sentence, but only where the sentence is founded on an error of principle or is plainly wrong. Accordingly, so long as the sentence is lawful and the discretion was exercised judiciously, the appellate court ought not to disturb it. and the court cannot interfere with the sentence meted out by the trial court. 66.Consequently, the Appeal against conviction and sentence fails in its entirety and is hereby dismissed. DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY 2026A.K. NDUNG’UJUDGE