Mwambi v Republic

4. The robbery was witnessed by Dorcas Kanario (PW2), who at the material time was walking behind the compliant, also from church. She raised an alarm, which attracted members of the public, but they were unable to apprehend the appellant, who escaped. He was apprehended later by ocers from Kanuni AP Camp and charged with the oence. 5. Another eyewitness to the robbery was Stanley Kiriangi (PW3) who at the material time was in a hotel at Kimongoro Market. Upon hearing screams, he rushed out and found the appellant struggling with the complainant before he stabbed her and ran away with her handbag. He was about 10 meters away from the appellant and the complainant and knew the appellant since their childhood. 6. M’Ngai M’Mathio (PW5), a clinical ocer at Nyambene District Hospital who examined the complainant about nine days after the incident, testied to the injuries sustained by her, which he assessed as harm. 7. Upon being put on his defence, the appellant gave an unsworn statement and denied committing the oence. He added that the case against him was fabricated and borne of a conspiracy between the complainant and her brother-in- law, to whom he had declined to sell a piece of his family land at Kimongoro market. 8. As earlier stated, the trial court convicted the appellant as charged and sentenced him to death. His rst appeal to the High Court, in which he challenged both his conviction and sentence, was unsuccessful, leading to this second appeal. 9. The appellant challenges the decision of the High Court on only two grounds, namely that the court erred by: i. failing to nd that the appellant was denied the right to a fair trial guaranteed by Article 50(2) (h) of the Constitution because the State did not provide him an advocate at its expense and he was not promptly informed of his said right; and ii. By upholding the death sentence which is mandatory in nature and a violation of the right to a fair hearing. 10. Relying on submissions dated 15th August 2025, the appellant’s counsel, Mr. Kimani submitted, on the rst ground of appeal, that the appellant was not represented by an advocate in both the trial and the rst appellate court, which was in violation of Article 50(2) (h) of the Constitution because he was facing a capital oence. He contended that from the nature of the prescribed sentence, the appellant suered substantial injustice due to the lack of an advocate. Counsel cited the decision of the Supreme Court in Republic v Chengo & 2 Others [2015] KESC 15 (KLR) and submitted that the right to legal representation at State expense is a fundamental ingredient to the right to a fair trial. 11. Turning to the second ground of appeal, the appellant submitted that the prescribed sentence for robbery with violence is a mandatory death sentence and that such a sentence amounted to a violation of Article 25 of the Constitution, which allows no limitation to the right to fair trial. It was further contended that curtailment of judicial discretion in sentencing constituted a violation of the right to fair trial. 12. In winding up his submissions, the appellant readily accepted that the grounds on which his appeal was founded were never raised before the trial court or the rst appellate court. However, he urged us to allow the appeal and set him to liberty. 13. The respondent, represented by Ms. Mengo, learned counsel, opposed the appeal vide written submissions dated 16th August 2025. Counsel addressed the grounds of appeal raised in the appellant’s https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2223/eng@2025-12-19 2

page 2 of 4

self-drawn memorandum of appeal, but which issues the appellant’s counsel abandoned and focused on two issues we have set out above. Those earlier issues were that the High Court erred by failing to hold that the appellant was not identied; by failing to nd that some of the items alleged to have been stolen from the complainant were not set out in the charge sheet; by failing to hold that crucial witnesses were not called by the prosecution; by failing to hold that the P3 Form was lled later and by rejecting his defence. 14. The respondent submitted that the elements of the oence of robbery, as explained in Dima Denge Dima & Others v Republic [2013] eKLR, were proved beyond reasonable doubt in this case. It was contended that the oence was committed in broad daylight, and in addition to the complainant, there were two other eyewitnesses. As regards the particulars in the charge sheet, it was submitted that they were sucient to disclose the oence charged and that the mention of only the handbag and Kshs 5,000 was sucient. Further, it was the kind of omission curable under section 382 of the Criminal Procedure Code. On failure to call some witnesses, it was submitted that under section 143 of the Evidence Act, no particular number of witnesses is required to prove a case and that the prosecution had adduced sucient evidence in this case. 15. It was also the respondent’s submission that there is no set time within which the P3 Form should be lled and that the Form was properly lled on the complainant’s second visit to the hospital and was properly produced in evidence. On the last issue of the appellant’s defence, it was submitted that it was duly considered and found to be an afterthought because the appellant did not raise the issue of conspiracy and fabrication in his cross- examination of witnesses. 16. We have carefully considered this appeal, the submissions by learned counsel and the authorities cited. By dint of section 361 of the Criminal Procedure Code and decisions of this Court such as Karani v Republic [2010] 1 KLR 73, this second appeal is restricted to matters of law only. 17. As indicated, the appellant and the respondent submitted at cross-purpose, with the appellant focusing on the grounds of appeal drawn by his advocate, while the respondent addressed the earlier self-drawn grounds by the appellant. 18. Having considered the appeal, we will take it that the appellant abandoned the earlier ground which he did not submit on, and only focused on the two grounds we have set out above. Its the respondent who was blind-sided and concentrated on the earlier rather than the later grounds of appeal. 19. In his submissions, the appellant readily admits that the issues of representation by an advocate was never raised in the trial court or in the rst appellate court. That issue is making its rst appearance before this Court, and neither arises nor ows from the judgment of the High Court which is challenged in this appeal. The High Court simply never engaged with the issue and by reason of that fact, the appellant is precluded from raising in this Court a matter that was not decided by the rst appellate court, unless it is an issue on jurisdiction. 20. It would be out of order for this Court to fault the rst appellate court on an issue that was neither raised before that court nor decided by it. The appeal before us challenges the decision of the High Court and for that reason, we cannot agree or disagree with the High Court on an issue that it neither considered nor decided. 21. If a party fails to raise an issue in the rst appellate court, he is precluded from raising the issue for the rst time in this Court or in the Supreme Court. In such instances it would be tantamount to the second appellate court exercising original rather than appellate jurisdiction, which is not its mandate. (See Republic v Mwangi [2024] KESC 34 (KLR); Republic v Manyeso [2025]KESC 16 (KLR) and Republic v Ayako [2025] KESC 20 (KLR)). https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2223/eng@2025-12-19 3

page 3 of 4

22. As regards the mandatory nature of the death sentence in robbery with violence cases, the Supreme Court has since stated that its decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu 1), where it declared the mandatory nature of the death sentence unconstitutional, is applicable only in murder cases. In its subsequent decision in Francis Karioko Muruatetu & Another v Republic & Others [2021] eKLR (Muruatetu 2), the Supreme Court reiterated that the mandatory death sentence prescribed under section 296 (2) of the Penal Code for the oence of robbery with violence is still legal. 23. In these circumstances and given the binding nature of the decisions of the Supreme Court under Article 163(7) of the Constitution, we cannot entertain for the rst time an issue that was not raised in the High Court and we cannot interfere with the prescribed sentence for the oence of robbery with violence. 24. In the circumstances, this appeal is dismissed in its entirety. It is so ordered. DATED AND DELIVERED AT NYERI THIS 19TH DAY OF DECEMBER, 2025. WANJIRU KARANJA --------------------------JUDGE OF APPEAL K. M’INOTI --------------------------JUDGE OF APPEAL ALI - ARONI --------------------------JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2223/eng@2025-12-19 4

page 4 of 4