https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11138

Ilale v Republic (Criminal Appeal E086 of 2025) [2026] KEHC 11138 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11138 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E086 of 2025 AK Ithuku, J July 21, 2026 Between Xavier Ojuma Ilale Appellant and Republic Respondent (Being an appeal from the conviction delivered on 28th August 2024 and the sentence imposed on 25th September 2024 by Hon. M. Nyigei (PM) in Kisumu Chief Magistrate’s Court Criminal Case No. E455 of 2023) Judgment Background 1.The Appellant, Xavier Ojuma Ilale, was charged before the Chief Magistrate’s Court at Kisumu with robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars alleged that on 5th December 2023 at about 7.15 p.m. at Obunga in Kisumu Central Sub-County, jointly with another person not before the court, he robbed Jeremiah Onyango Sadha of motorcycle registration number KMGK 195L, a red Boxer Bajaj valued at Kshs. 149,000, and immediately after the robbery used actual violence which caused Jeremiah’s death. 2.The Appellant denied the charge. Upon a full trial, the learned Principal Magistrate convicted him on 28th August 2024. Following mitigation and consideration of a pre-sentence report, the trial court sentenced him on 25th September 2024 to thirty years’ imprisonment. In imposing that sentence, the court took account of the period spent in pre-trial custody and the grave consequence that the victim lost his life. 3.The Appellant now challenges both conviction and sentence. The Respondent opposes the appeal and, by a notice dated 20th January 2026, seeks enhancement of the sentence to the death sentence prescribed by Section 296(2) of the Penal Code. THE TRIAL EVIDENCE 4.PW1, John Odhiambo Otieno, and PW2, Charles Odhiambo, were motorcycle taxi operators at the Kisumu Bus Park. Their evidence was that at about 7.00 p.m. two male passengers sought transport to Obunga. PW2, who was first in the queue, was called by a regular customer and left the two men to the deceased, who was next in line. PW1 and PW2 saw the deceased leave with the two passengers on motorcycle KMGK 195L. He did not return to the stage that evening. 5.PW2 testified that he visited the deceased in hospital the following day and observed a cut on his head and swollen eyes. He thereafter went to Obunga Police Station, where he was shown the Appellant and identified him as one of the two passengers, principally from distinctive pigmentation around his mouth. PW1 also identified the Appellant in court as one of the passengers he had seen at the stage. Neither PW1 nor PW2 had known him before that evening. 6.PW3, Police Constable Omuketi Clinton, and PW4, Police Constable Edwin Ngira, were on patrol along the Obunga-Kondele bypass that evening. Upon hearing screams, they moved towards the source and saw two men pushing a motorcycle and attempting to kick-start it while a crowd approached. When the men noticed the officers and the crowd, they abandoned the motorcycle and fled. PW3 pursued one of them across a fence and apprehended him. That person was the Appellant. The officers returned him to the place where the motorcycle had been abandoned and found the deceased grievously injured and bleeding. Because the crowd was threatening to lynch the Appellant, the officers first removed him to Obunga Police Station and then returned for the injured man, whom they took to hospital. He died the following day. 7.PW5, Corporal Robert Chumba, investigated the case. He interviewed the witnesses, visited the place pointed out to him as the scene, arranged for the motorcycle to be photographed and obtained financing and release documents from MOGO Auto Limited. Those documents identified Jeremiah Onyango Sadha as the person to whom motorcycle KMGK 195L, Boxer BM100, chassis number MD2A18AX8PWJ53612, had been released. PW6, Police Constable Peter Kimurei Kebenei, produced six photographs of the motorcycle, the certificate relating to the photographs, the relevant gazette notice and an NTSA verification document. The photographs displayed registration number KMGK 195L, while the verification document contained the corresponding chassis and engine particulars. 8.PW7, Dr. Lucy Ombok, produced the post-mortem report. The deceased had multiple cut wounds to the head, a swollen right eye, a laceration to the right arm, a skull fracture, raised intracranial pressure and a massive subdural hermatoma. The doctor attributed death to massive internal bleeding from blunt-force injury secondary to assault. 9.In sworn defence, the Appellant testified that he worked at a construction site until 5.00 p.m. and thereafter went to a chang’aa den. He said that persons in civilian clothes arrested several people at the den; some allegedly paid money and were released, while he was taken to the police station and later charged with an offence of which he knew nothing. He called no witness. The Appeal 10.The Appellant filed an amended petition of appeal dated 17th September 2025. The grounds, reproduced in their pleaded order and with only minor correction of punctuation and obvious grammatical errors, are as follows:a.THAT, the Honourable trial court erred in law and fact by failing to note that the prevailing circumstances at the scene were not sufficient to warrant a clear identification beyond reasonable doubt that the Appellant was among the two passengers who boarded the deceased’s motorcycle on the fateful night, considering that the legal existence and ownership of the alleged stolen motorcycle were not proved beyond reasonable doubt, the legally required threshold.b.THAT, the Honourable trial court erred in law and fact by failing to place the required weight on the fact that the investigations undertaken in the matter lacked the requisite merit and weight to warrant the Appellant’s conviction and sentence, considering that the prosecution failed to avail vital witnesses necessary to prove its case against him beyond the legally required threshold.c.THAT, the Honourable trial court erred in law and fact by failing to observe that the Appellant’s unlimited right to a fair trial under Article 50(2), as read with Article 25(c) of the Constitution, was grossly violated, limited and infringed during the trial, thereby rendering the entire trial unfair and unjust.d.THAT, the Honourable trial court erred in law and fact by failing to observe that the manner in which the photographed motorcycle was handled as an exhibit in the matter was doubtful and unlawful, since the motorcycle was not physically produced before the trial court as an exhibit and its whereabouts at the time of trial were neither established nor proved.e.THAT, the Honourable trial court erred in law and fact by disregarding the Appellant’s alibi defence, which was the truth, and instead relying on mere perceptions, assertions and assumptions which had not been proved beyond reasonable doubt to convict and sentence him.f.THAT, the Honourable trial court erred in law and fact by finding that the prosecution had proved its case against the Appellant beyond reasonable doubt.g.THAT the Appellant asks that the conviction be quashed, the sentence set aside and that he be set at liberty. In the alternative, he seeks an order for a retrial. The Parties’ Submissions 11.In his written submissions, the Appellant argued that the charge as duplex because it cited Section 295 as read with section 296(2) of the Penal Code. On identification, he submitted that PW1 and PW2 were identifying strangers at night, gave no satisfactory evidence of the lighting at the bus stage, supplied no prior description and did not participate in an identification parade. He characterized PW2’s encounter with him at the police station as a suggestive show-up and PW1’s evidence as a worthless dock identification. 12.The Appellant further relied on differences in the witnesses’ estimates of time and their descriptions of the locality. He argued that PW1 and PW2 placed the departure from the stage at about 7.00 p.m. or later, whereas PW3 and PW4 spoke of about 6.30 p.m. He also contrasted references to the Obunga-Kondele bypass and Tom Mboya Estate with PW5’s description of a murram and bushy road near Victoria Hotel. He contended that no witness saw him steal the motorcycle or assault the deceased and that no weapon, fingerprints, DNA, recovery inventory, occurrence-book extract or independent evidence from the pursuing crowd was produced. 13.Regarding the motorcycle, the Appellant argued that its legal existence and ownership were not proved, that the MOGO documents were produced without calling the deceased’s wife or an officer from MOGO, that the motorcycle itself was never brought to court, and that its release and whereabouts were not documented. He also drew attention to the date on the photographic certificate and to isolated variations in the recorded registration number. 14.On the right to a fair trial, the Appellant submitted that although he eventually received the charge sheet and witness statements, he was not supplied in advance with the photographs, post-mortem report, financing documents, NTSA verification and photographic certificate. He argued that their production amounted to trial by ambush and infringed his rights under Articles 25(c) and 50(2)(j) of the Constitution. Finally, he maintained that his sworn alibi was not displaced and that the trial court impermissibly shifted the burden of proof to him. 15.The Respondent submitted that the conviction was founded on a coherent evidential chain. It relied on the evidence that the Appellant and another man obtained the deceased’s services at the stage, were shortly thereafter encountered with the deceased’s motorcycle, abandoned it upon seeing the police and fled, and that the Appellant was arrested during immediate pursuit. The Respondent argued that the oral, documentary and photographic evidence sufficiently proved the existence and possession of the motorcycle, that the fatal violence and joint participation satisfied section 296(2), and that the alleged discrepancies were peripheral. 16.The Respondent further submitted that Section 143 of the Evidence Act did not oblige it to call a superfluity of witnesses; that the Appellant had access to the prosecution case and cross-examined every witness; and that the evidence of immediate pursuit and arrest displaced his alibi. On sentencing, the Respondent relied on the mandatory language of Section 296(2), the Supreme Court’s directions in Francis Karioko Muruatetu & another versus Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR), and the later appellate authorities. It asked the Court to dismiss the appeal and substitute the thirty-year term with the prescribed death sentence. Analysis And Determination 17.This is a first appeal. The Court is required to reconsider the entire evidence, evaluate it for itself and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses. In Okeno versus Republic [1972] EA 32, the Court of Appeal described the entitlement of a first appellant as a fresh and exhaustive examination of the evidence. The duty is not discharged by merely asking whether there was some evidence upon which the trial court could convict; the appellate court must itself determine whether the prosecution proved guilt beyond reasonable doubt. 18.Having considered the grounds of appeal, the record and the parties’ submissions, the questions requiring determination are whether the formulation of the charge occasioned prejudice; whether the Appellant’s identity and participation were proved despite the challenged conditions and discrepancies; whether the motorcycle existence, possession and production; and the statutory ingredients of robbery with violence were proved; whether the investigative omissions, uncalled witnesses and non-production of the physical motorcycle weakened the case; whether the Appellant’s fair-trial rights were violated; whether his alibi raised a reasonable doubt; and whether the sentence should be enhanced. a. Whether the formulation of the charge occasioned prejudice 19.Section 295 of the Penal Code defines robbery. Section 296(2) creates the aggravated form by prescribing three alternative circumstances: the offender is armed with a dangerous or offensive weapon; is in the company of one or more persons; or, at or immediately before or after the robbery, wounds, beats, strikes or uses other personal violence. Section 134 of the Criminal Procedure Code additionally requires a charge to state the specific offence and contain particulars sufficient to give reasonable information concerning the nature of the accusation. 20.In Mwaura & 2 others v Republic [2013] KECA 541 (KLR), the Court of Appeal stated that robbery with violence “ought to be charged under section 296(2)” and that framing it under both sections 295 and 296(2) “would amount to a duplex charge.” That proposition concerns correct pleading practice. It does not mean that every charge using the impugned formulation is automatically a nullity irrespective of its particulars and the conduct of the trial. 21.The later decision in Isoe v Republic [2023] KECA 27 (KLR) explains why. The vice at which the rule against duplicity is directed is uncertainty as to the case the accused must meet. The controlling questions are whether the charge informed the accused of the accusation and whether its formulation produced confusion or prejudice in mounting the defence. In Isoe (Supra), the Court held that a similarly framed charge “did not occasion any prejudice” and was curable under Section 382 of the Criminal Procedure Code. 22.The charge in the present case identified the date, place, victim, property, joint participation and the fatal violence said to have accompanied the taking. The Appellant pleaded to that accusation, cross-examined the prosecution witnesses on each of those matters and advanced a defence of mistaken arrest and alibi. Neither the record nor his submissions disclose uncertainty as to whether he faced simple robbery or robbery with violence. The citation of Section 295 as read with Section 296(2) was therefore defective in form, but it caused no failure of justice and is curable under Section 382 of the Criminal Procedure Code. b. Whether the Appellant’s identity and participation were proved despite the challenged conditions and discrepancies 23.The law approaches visual identification with caution because an honest witness may nevertheless be mistaken. In Wamunga v Republic [1989] KECA 47 (KLR), the Court of Appeal warned that visual identification can bring about miscarriages of justice and must be carefully examined. Where identification occurs in darkness, Maitanyi versus Republic [1986] KECA 39 (KLR) requires inquiry into the nature, strength and position of the light and the witness’s opportunity for observation. 24.PW1 and PW2 were identifying persons whom they had not known previously. The incident occurred in the evening. Neither gave a satisfactory account of the source or intensity of light at the stage. PW1’s identification of the Appellant in court was not preceded by an identification parade. PW2 was shown a single suspect at Obunga Police Station after being informed that a suspect had been arrested. That procedure was inherently suggestive. Although the distinctive pigmentation around the Appellant’s mouth lent some support to PW2’s recollection, the record does not show that the feature was described to the police before he saw the Appellant at the station. I would therefore regard the stage witnesses’ identification, standing alone, as insufficiently secure to sustain the conviction. 25.That conclusion does not dispose of the appeal because the prosecution case did not rest solely, or principally, on a later identification by PW1 and PW2. PW3 and PW4 testified to a direct transaction: they encountered two men with the motorcycle while a crowd approached; the men abandoned it and fled; PW3 immediately pursued one of them across a fence and arrested him. PW4 confirmed the flight, pursuit and return of the arrested man to the place where the deceased lay injured. Their evidence was not an identification of a suspect presented at a later parade or in the dock. It was evidence of observation followed by immediate and continuous pursuit. 26.Katana & Another v Republic [2022] KECA 1160 (KLR) recognises that an identification parade is particularly important where the suspect was previously unknown or the initial observation occurred in difficult circumstances. The purpose of a parade is to test a witness’s ability to select a suspect whose identity remains genuinely uncertain. It would have added nothing to PW3’s evidence after he personally pursued and arrested the Appellant in the same transaction. The critical issue was therefore the credibility and continuity of that pursuit, not the absence of a parade. 27.The Appellant also relies on discrepancies in time. PW1 and PW2 spoke of approximately 7.00 p.m.; PW2’s statement was challenged as mentioning 8.00 p.m.; PW3 and PW4 referred to about 6.30 p.m.; PW5 estimated the occurrence as shortly before 7.00 p.m.; and the charge alleged about 7.15 p.m. In Watu versus Republic [2016] KECA 696 (KLR), the Court of Appeal stated that the court must decide whether inconsistencies are minor or “go to the root of the matter.” Here, the witnesses were giving approximate evening times and were not shown to have consulted synchronized clocks. PW3 accepted a difference of about thirty minutes. The variance deserved express treatment by the trial court, but it does not, on the whole evidence, create two separate or impossible transactions. 28.The descriptions of location are similarly reconcilable. PW3 and PW4 described the place where they heard screams, encountered the men and commenced pursuit along the Obunga-Kondele bypass or the streets of Tom Mboya Estate. PW5 described a murram and bushy section near Victoria Hotel to which he was taken during later investigations. The evidence did not establish that those descriptions referred to geographically incompatible places. In any event, PW5’s later scene visit was not the foundation of the recovery or arrest; those facts were proved by the officers who were present. 29.Nor is there a material contradiction between the lay witnesses’ initial observation of an obvious bleeding head injury and the doctor’s fuller description of several wounds and internal injuries. A person rendering urgent assistance cannot be expected to conduct a medical inventory. The post-mortem findings explain the gravity of what PW2, PW3 and PW4 observed. Similarly, the fact that the deceased was groaning or appeared unconscious at the scene does not establish that he could not later regain consciousness. I nevertheless place no decisive weight on the alleged direction he (the deceased) gave PW2 to visit the police station, because the conviction is sustainable without it. 30.The cumulative circumstances were cogently established: the deceased left the stage with two passengers on KMGK 195L; shortly thereafter two men were encountered pushing and attempting to start that motorcycle while a crowd pursued them; the grievously injured deceased was found nearby; both men fled on seeing the police; and the Appellant was immediately apprehended in the ensuing chase. Applying the test in Musili Tulo versus Republic [2014] KECA 412 (KLR), those circumstances form a complete chain pointing unerringly to the Appellant’s participation and leave no reasonable co-existing hypothesis of innocent presence. They also provide strong independent support for the stage witnesses’ evidence. c. Whether the motorcycle existence, possession and production; and the statutory ingredients of robbery with violence were proved 31.In Johana Ndungu versus Republic [1996] KECA 187 (KLR), the Court of Appeal explained that robbery with violence incorporates the basic elements of robbery under section 295 and any one of the three aggravating circumstances under section 296(2). The circumstances are disjunctive. It was therefore unnecessary for the prosecution to prove that the offenders were armed, were in company and used violence; proof of any one aggravating circumstance, together with the robbery, would suffice. 32.The evidence proved at least two aggravating circumstances. The offenders were two, and actual violence was used at or immediately about the taking of the motorcycle. The post-mortem evidence established that the assault caused fatal blunt-force head injuries. No witness saw a weapon. The trial magistrate therefore went beyond the evidence in inferring from the seriousness of the injuries alone that the attackers must have been armed with a dangerous weapon. That error is immaterial because company and personal violence were independently established beyond reasonable doubt. 33.It was not necessary to identify which of the two men delivered the fatal blows. Section 21 of the Penal Code attributes an offence to each participant where two or more persons form a common intention to prosecute an unlawful purpose and, in its execution, an offence of such a nature as was a probable consequence is committed. The evidence that the two men travelled together, were jointly handling the stolen motorcycle, abandoned it together and fled together demonstrates concerted conduct. Violence used to overcome the rider and obtain his motorcycle was in furtherance of, and a probable incident of, that common unlawful purpose. The Appellant was accordingly liable as a principal participant even though no eyewitness apportioned the individual blows. 34.The prosecution was also required to prove that property capable of being stolen existed, was in the deceased’s possession and was taken from him. It was not required to establish indefeasible registered ownership as though determining a civil contest over title. PW1 and PW2 knew motorcycle KMGK 195L from their daily work with the deceased. PW2 explained that it had been acquired from the same dealer at about the time he acquired his own. Their evidence placed the motorcycle in the deceased’s possession immediately before the incident. 35.The financing and release documents were private documents and were not produced through their maker or a records custodian from MOGO. The deceased’s wife, who supplied them to PW5, was not called; and PW5’s visits to MOGO did not make him the maker of those records. Although the documents were admitted without objection, I therefore treat them as corroborative rather than foundational. They nevertheless bore the deceased’s name and the particulars of KMGK 195L. Independently, the photographs displayed that registration number, the NTSA verification corresponded with the chassis and engine particulars, PW1 and PW2 knew the motorcycle, and PW3 and PW4 proved its recovery. Taken together, that evidence established the existence of the motorcycle and the deceased’s possession of it. Isolated references in the typed record to “KMGL” or “195I” are plainly transcription or optical errors when read against the charge, photographs and the consistent oral evidence. 36.The Appellant’s argument that the physical motorcycle was not produced must be considered in context. Section 78 of the Evidence Act permits photographs taken by an appointed officer, together with the prescribed certificate, to be received as evidence of the facts depicted without needing to call the person who took or developed the photographs. The prosecution produced the photographs, the certificate and the gazette material through PW6, who was cross-examined. The provision does not make a photograph conclusive; its weight depends on authentication and the rest of the evidence. Equally, there is no rule that every recovered object must invariably be brought into the courtroom before its existence can be proved by admissible oral and documentary evidence. 37.The police ought to have kept a clearer contemporaneous recovery inventory and a documented trail showing to whom and on what authority the motorcycle was released. PW6’s certificate recorded the photography on 18th December 2023, while parts of PW5’s account were less precise about when the scenes-of-crime process occurred. Those are shortcomings in exhibit management. They do not, however, create a reasonable possibility that the photographed motorcycle was invented or substituted: its registration and chassis particulars corresponded with the financing documents, PW1 and PW2 identified it, and PW3 and PW4 gave direct evidence of its recovery. Even without the photographs, that combined evidence proved the property and its connection to the deceased. d. Whether the investigative omissions, uncalled witnesses and non-production of the physical motorcycle weakened the case 38.Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. The principle set in Bukenya & others versus Uganda [1972] EA 549 permits an adverse inference where the prosecution withholds an essential and readily available witness and the evidence called is barely adequate. It does not oblige the prosecution to call every person who may have witnessed some part of the transaction. As stated in Keter versus Republic [2007] 1 EA 135, the prosecution need only call witnesses sufficient to establish its case. 39.The members of the pursuing crowd would principally have repeated evidence about the chase and recovery already given by PW3 and PW4. The regular customer who called PW2 did not witness the robbery, recovery or arrest. The deceased’s wife or a MOGO records officer could have properly proved the private financing documents. Their absence limits the weight attributable to those documents, but does not create an evidential vacuum because the deceased’s possession of the motorcycle and its recovery were independently proved by PW1, PW2, PW3 and PW4. The unidentified accomplice escaped and was not shown to have been available to the prosecution. None of those witnesses was demonstrated to be indispensable to proof of the offence, and the evidence called was not barely adequate. No adverse inference arises. 40.The absence of fingerprints, DNA, blood analysis, an occurrence-book extract or a weapon likewise does not create an automatic evidential gap. Forensic evidence would have been useful, but the motorcycle had been handled by several people and PW5 explained why fingerprints were not pursued. An occurrence-book extract might have corroborated the patrol and arrest, but the two officers themselves testified and were cross-examined. The decisive question is not whether the police could have conducted a more meticulous investigation, but whether the admissible evidence actually presented met the criminal standard of proof. 41.The investigation was not beyond criticism. A recovery inventory, clearer scene documentation, more precise chronology and a documented release of the motorcycle would have improved the integrity of the file. A court must not excuse poor investigation merely because the charge is serious. Yet investigative imperfections warrant an acquittal only where they undermine an essential link or generate a reasonable doubt. Here, they did not sever the immediate chain from the abandoned motorcycle and injured victim to the Appellant’s flight, pursuit and arrest. e. Whether the Appellant’s fair-trial rights were violated 42.Article 50(2)(j) guarantees an accused person the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to it. The obligation is continuing and extends beyond witness statements to documentary exhibits. In Ahamad Abolfathi Mohammed & Another versus Republic [2018] KECA 743 (KLR), the Court of Appeal affirmed the prosecution’s duty to disclose “copies of statements” and “copies of documentary exhibits” sufficiently in advance to permit an effective defence. 43.The record shows that on 28th February 2024 the Appellant complained that he had not received witness statements, whereupon the trial court directed the prosecution to supply them. His own submissions acknowledge that the statements and charge sheet were supplied on 6th March 2024, before the hearing began on 20th March 2024. When he complained at the hearing that he had not seen the photographs, the court directed that they be shown to him. He thereafter cross-examined the witnesses who produced the photographs, financing documents, verification material and post-mortem report. 44.The better and constitutionally compliant practice was to provide copies of all intended documentary exhibits before their production, not merely to display them when the relevant witness was testifying. The trial record should also have expressly recorded compliance in relation to each category of document. The Court must, however, determine from the whole record whether reasonable access was denied and whether the defence was thereby impaired. The Appellant did not request an adjournment to study any exhibit, identify a document he was unable to examine after the court’s directions, or demonstrate a line of cross-examination or defence that he was prevented from pursuing. He challenged the documents at length both at trial and on appeal. 45.The non-derogable character of the right to a fair trial under Article 25(c) does not dispense with the factual inquiry whether the asserted denial occurred. On this record, the prosecution’s initial disclosure was incomplete and the documentation of compliance was unsatisfactory, but the court intervened before the material was relied upon and the Appellant was afforded a meaningful opportunity to confront it. I am therefore not persuaded that the proceedings, viewed as a whole, were rendered unfair or that the admission of the exhibits occasioned prejudice requiring the conviction to be set aside. f. Whether the Appellant’s alibi raised a reasonable doubt 46.An accused person who raises an alibi assumes no burden of proving it. In Kiarie versus Republic [1984] KLR 739, the Court of Appeal held that an alibi is sufficient if it introduces a reasonable doubt and that the burden remains throughout on the prosecution. The timing at which an alibi is raised may affect the opportunity to investigate it, but cannot reverse the legal burden. 47.The trial magistrate described the Appellant’s defence as an afterthought and relied partly on his failure to suggest the chang’aa-den arrest to the prosecution witnesses. To the extent that the language implied that the Appellant had to establish his account, it was a misdirection. I have therefore considered the sworn defence afresh and without requiring him to prove where he was. 48.The alibi did not raise a reasonable doubt because it was directly displaced by the evidence of PW3 and PW4. They did not merely say that the Appellant was subsequently found at Obunga Police Station. They described seeing two men with the deceased’s motorcycle, their joint flight, PW3’s immediate pursuit and arrest, and the return to the place where the injured deceased lay. Their mutually reinforcing evidence was irreconcilable with a general arrest among patrons inside a chang’aa den. The prosecution thereby disproved the alibi beyond reasonable doubt; the conclusion does not depend on the Appellant’s failure to call a witness or to prove his innocence. Conclusion On Conviction 49.Upon my independent evaluation, I find that the prosecution proved that motorcycle KMGK 195L was in the deceased’s possession and was taken from him; that fatal violence accompanied the taking; that the offenders acted in company; and that the Appellant was one of them. The safest basis for identity is not PW2’s police-station show-up or PW1’s dock identification in isolation, but the direct evidence of possession, flight, immediate pursuit and arrest, reinforced by the stage evidence, the motorcycle documents and the medical findings. 50.The trial court erred in inferring the use of a weapon without evidence and did not sufficiently distinguish the weak police-station identification from the stronger evidence of immediate pursuit. It also used inaccurate reasoning in rejecting the alibi. The discrepancies and investigative omissions, considered both individually and cumulatively, do not create a reasonable doubt. The conviction for robbery with violence was therefore proper. Since the conviction has been found to be proper and no procedural or evidential defect warranting a retrial has been established, the Appellant’s alternative prayer for a retrial is without basis and is accordingly declined. g. Whether the sentence should be enhanced 51.Section 354(3)(a) of the Criminal Procedure Code empowers the High Court, on an appeal from conviction, to alter the finding and to reduce, increase or alter the nature of the sentence. Because enhancement exposes an appellant to a more severe punishment, procedural fairness requires clear prior notice and an opportunity to address the proposed increase. The Court of Appeal has repeatedly held that enhancement should not take an appellant by surprise. 52.That requirement was satisfied. On 23rd February 2026, the Appellant confirmed that he had been served with the Respondent’s notice of enhancement of sentence. The Court expressly cautioned him that, should he proceed and the appeal fail, his sentence might be enhanced to the death sentence. The Appellant answered: “I still wish to proceed with the appeal.” He therefore knew both the application and its possible consequence, and elected to proceed. Enhancement is consequently not an ambush. 53.The starting point is the statutory text. Section 296(2) of the Penal Code provides that where an offender is armed with a dangerous or offensive weapon, acts in company with one or more persons, or wounds, beats, strikes or uses other personal violence at or immediately before or after the robbery, the offender “shall be sentenced to death.” The concluding words are mandatory and prescribe a single punishment. On the face of the provision, therefore, a determinate term of thirty years is not one of the sentences enacted by Parliament for robbery with violence. 54.That conclusion must nevertheless be situated within the constitutional jurisprudence on capital punishment. The legality of the death penalty is distinct from the constitutionality of making it mandatory. Article 26(3) of the Constitution permits an intentional deprivation of life to the extent authorized by the Constitution or other written law. In Francis Karioko Muruatetu & another versus Republic [2017] KESC 2 (KLR), the Supreme Court invalidated Section 204 of the Penal Code only to the extent that it made death mandatory for murder. It was emphatic that its decision “does not outlaw the death penalty.” Death therefore remains a lawful punishment; what Muruatetu I condemned was the automatic exclusion of judicial consideration of the offender and the circumstances of the offence under Section 204. 55.The Supreme Court subsequently confined that holding in Muruatetu & Another versus Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR). It directed that a challenge to the constitutional validity of the mandatory death penalty for robbery with violence under Section 296(2) must be properly filed, presented and fully argued before the High Court and, if necessary, pursued on appeal. Its controlling statement was that: “Muruatetu as it now stands cannot directly be applicable to those cases.” An appellate court cannot therefore treat Muruatetu I, without more, as having invalidated Section 296(2). 56.That limitation was reinforced in Republic versus Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), and Republic versus Ayako [2025] KESC 20 (KLR). The Supreme Court held that it is not open to an appellate court to transplant the ratio in Muruatetu to a different statutory sentence by analogy, or to fashion a substitute term that Parliament has not enacted, where the constitutional validity of the particular provision was not first placed before and determined by the High Court. Those decisions rest both on Article 163(7), which binds all other courts to decisions of the Supreme Court, and on the constitutional allocation of original jurisdiction under Article 165(3)(d). 57.I am alive to the fact that the Court of Appeal jurisprudence has not been entirely uniform. In Katana & another v Republic [2022] KECA 1160 (KLR), Alice versus Republic [2025] KECA 726 (KLR) and Chege versus Republic [2025] KECA 1207 (KLR), the Court declined to extend Muruatetu I to section 296(2), notwithstanding its expressed concern that the mandatory outcome may be disproportionate. Maina & Another v Republic [2026] KECA 129 (KLR) and Mitheru versus Republic [2026] KECA 540 (KLR) likewise treated death as the sentence prescribed by the section. On the other hand, decisions such as Mutua versus Republic [2026] KECA 266 (KLR) have substituted determinate terms after considering mitigation. That divergence is real. It does not, however, amount to a declaration that Section 296(2) is unconstitutional, nor can it displace the express and binding directions of the Supreme Court. 58.Maina & Another (Supra) is particularly instructive because its procedural and sentencing circumstances are materially analogous to those before this Court. The appellants had received terms of thirty years, were warned that their sentences could be enhanced, and elected to proceed with their appeals. Upon affirming the convictions, the Court of Appeal set aside the determinate terms and held: “The sentence is mandatory. We have no discretion in the matter.” The same procedural safeguard was observed here: the Appellant received the notice, was expressly warned of the possible death sentence and maintained his appeal. 59.Where decisions of the Court of Appeal point in different directions, this Court must adopt the course that is consistent with the binding pronouncements of the Supreme Court. The present proceedings are an ordinary first appeal against conviction and sentence. The constitutional validity of Section 296(2) was not raised through a properly pleaded and fully argued constitutional challenge. This Court cannot, within this appeal, declare the provision invalid or indirectly extend Muruatetu I to it. Unless and until Section 296(2) is amended by Parliament or invalidated in competent constitutional proceedings, its mandatory terms remain enforceable. 60.Article 50(2)(p), which appeared in the original grounds of appeal, does not alter that conclusion. It entitles a convicted person to the benefit of the least severe punishment where the prescribed punishment changed between the commission of the offence and sentencing. No legislative amendment or constitutional declaration changed the punishment prescribed by Section 296(2) during the material period. 61.I therefore find that the sentence of thirty years’ imprisonment, although imposed after mitigation and consideration of the period spent in custody, was not a sentence authorized by Section 296(2). The deceased lost his life in the course of the robbery, a grave aggravating circumstance; but the present result follows from the subsisting statutory command and the binding jurisprudence, rather than from a discretionary comparison of aggravating and mitigating factors. Given the valid notice, the Court’s warning and the Appellant’s informed election to proceed, the Respondent’s application for enhancement must be allowed. Disposition 62.In the result, the appeal against conviction is dismissed. The conviction of the Appellant for robbery with violence contrary to Section 296(2) of the Penal Code is upheld. 63.The Respondent’s application for enhancement is allowed. The sentence of thirty years’ imprisonment imposed on 25th September 2024 is set aside and substituted with the sentence of death prescribed by Section 296(2) of the Penal Code. 64.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF JULY 2026HON. ALEX K. ITHUKUJUDGEDELIVERED ELECTONICALLY………………………………………….FOR THE APPELLANT…………………………………………FOR THE RESPONDENTMr. Gitonga – Court AssistantHON. ALEX K. ITHUKUJUDGE