Kirema v Republic

grounds of appeal are that the learned Judge failed to consider all the relevant facts that were before him and, as a result, he was plainly wrong in his decision. 5. Before addressing the grounds, we will summarise the evidence presented in the trial court. PW1, Charles Mugambi, testied that on 12th January 2012, at about 10:00 a.m., while guarding a miraa farm belonging to one Silas Ngorua (Silas), he spotted the appellant on top of a miraa tree plucking miraa, and he asked him what he was plucking the miraa for. The appellant jumped down the tree holding a slasher and cut him twice on the mouth, twice on the right hand, and once on the left hand. PW1 started screaming. PW2 and PW3 arrived and found the appellant still attacking him. They threw stones in order to rescue him. The appellant then picked up a sack containing miraa and ran away while PW3 telephoned the farm owner. They went together to Laare Police Station and reported the incident. After reporting, PW1 was taken to Maua Methodist Hospital, where his wounds were stitched; an X-ray revealed that his left hand was fractured. He was not admitted. Later, he was issued a P3 form, which was lled at Laare Health Centre. The appellant was later arrested by the Assistant Chief of Antubetwe Sub-Location. The miraa the appellant stole was worth about Kshs. 10,000, which was never recovered. PW1 knew the appellant previously, had no grudge against him, and noted that the slasher was not recovered. 6. PW2 Isaac Mungathia testied that on 12th January 2012, at 10:00 a.m., he went to the shamba of his father, Silas, accompanied by his friend, PW3. When they arrived near the shamba, he heard a noise inside and saw the appellant cutting PW1. The appellant had a c-line (a type of slasher), while PW1 had a short stick and was trying to block the slasher with it. They broke the fence and entered. When the appellant saw them, he took the miraa from a sack and escaped. PW1 had injuries on his upper lip and both hands. They started walking away with PW1 and met PW2's father on the way, who took PW1 to the hospital. PW2 did not accompany them. Later, he went to record his statement; he was not there when the appellant was arrested. He was informed of the arrest by his father. He had known the appellant for more than ten years and considered him a friend. 7. PW3, Peter Gitonga, testied that on 12th January 2012, at about 10:00 a.m., he and PW2 were sent by Silas to check whether his miraa was ready for harvesting. When they reached near the farm, they heard screams from the shamba and rushed to the scene. They found PW1 lying on the ground, and the appellant, who had a c-line, had lifted it up, ready to cut PW1. They picked up stones and shouted at the appellant to stop. The appellant took the sack of miraa and ran away. They found PW1 bleeding from the mouth and both hands. The witness telephoned Silas to inform him, and they met him on the way. Silas had a motorcycle and took PW1 to the hospital, while PW3 and PW2 returned to guard the miraa. PW3 was not present when the appellant was arrested. He noted that he had known him for about ve years. He had no grudge against him. 8. PW4, Romano Mwenda, presented the P3 form for 45-year-old PW1, who had a reported history of being assaulted by a known individual. The medical examination revealed that he sustained multiple wounds, including cut wounds on the upper lip, right forearm, and left forearm. An X-ray revealed a fracture of the distal ulna, and it was noted that the wounds were sutured and a plaster cast (POP) was applied to the left forearm. The injuries were approximately 5 days old at the time of examination, and the degree of injury was classied as grievous harm. 9. PW5 Corporal Victor Jairus Nabwenya testied that on 12th January 2012, at approximately 12:40 p.m., PW1 arrived at Laare Police Station accompanied by members of the public and reported that he had been assaulted while guarding his employer's miraa. Upon instruction from the Ocer Commanding Station (OCS), PW5 issued PW1 with a P3 form and referred him to the hospital. Once https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1701/eng@2026-09-25 2

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the P3 form was lled and returned, PW5, assisted by his colleagues, recorded witness statements and opened a case le. 10. An arrest order was subsequently issued, and the appellant was later arrested by Administration Police (AP) ocers and brought to the station. Based on the details, PW5 formed the opinion that the appellant should be charged with robbery with violence. It was alleged that the appellant entered Silas’s farm and began harvesting his miraa. 11. When put to his defence, the appellant (DW1) elected to give sworn evidence rmly maintaining that he did not commit the alleged oence. The appellant testied that he was initially arrested on 12th by PW1, PW2, and Silas, though he could not recall the exact month and year. He explained that he had leased his miraa farm to Silas. According to his statement, these individuals began beating him and subsequently took him to Laare Police Station. Although they refused requests to take him to a hospital, he was eventually given a note, and he went to Meru District Hospital, where he received medical treatment. 12. After he recovered, the appellant returned to Laare Police Station, where he was issued with a warrant of arrest order. He took the order to the local chief; later, the chief returned alongside a police ocer, and they arrested him and took him back to Laare Police Station. When he produced his medical treatment notes, the police ocers conscated them and subsequently charged him with the oence. The appellant asserted that Silas caused his arrest solely because he refused to lease the miraa farm to him again. 13. In its judgment, the trial court found that the ingredients of the oence of robbery with violence had been established and the charge to have been proved beyond reasonable doubt and convicted the appellant, as charged and sentenced him to suer death. 14. Aggrieved by the conviction and sentence, the appellant lodged a rst appeal in the High Court, which was heard by Kiarie, J. In the judgment dated 20th December 2016, the learned Judge found that PW2 and PW3 conrmed that they found the appellant using a machete to attack PW1 and when they intervened, the appellant ran away with miraa in a sack. The learned Judge noted that the appellant did not challenge this evidence. He also noted that the appellant claimed to have sustained injuries, but he did not support that claim. The court found the issue of a grudge between the appellant and PW1 was an afterthought and so was his defence. The learned Judge upheld both the conviction and sentence, thus precipitating this second appeal. 15. In support of the appeal, learned counsel for the appellant led submissions dated 13th August 2025, contending that the prosecution failed to prove its case beyond reasonable doubt and asserted further that the High Court erred in law by failing to properly re-evaluate the evidence, choosing instead to merely rehash it. 16. Counsel maintained that the incident was not a robbery but a land dispute that escalated into a physical altercation. Counsel argued that the conict arose after a farm lease agreement with a third party, Silas’s, expired and was not renewed. This land dispute reportedly turned into a war of attrition, leaving both PW1 and the appellant with serious injuries. Counsel argued that the appellant was outnumbered, beaten, and eventually treated at Meru District Hospital, after which police ocers conscated his medical records. He claimed that the trial court applied double standards by penalising him for not producing the lease agreement or his conscated medical records while concurrently failing to require documentary proof of employment from the prosecution's main witness, an alleged security guard. 17. Furthermore, counsel highlights what he considered were critical gaps, contradictions, and inconsistencies within the prosecution's case. Notably, the alleged owner of the stolen miraa, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1701/eng@2026-09-25 3

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appellant's primary antagonist, Silas, was never called to give evidence to verify his ownership or the value of the property, which was casually estimated by the investigating ocer at Kshs. 10,000 without a recorded statement. Counsel submitted that these omissions and conicting narratives should create reasonable doubt. 18. Further, counsel contended that the High Court failed in its statutory duty as a rst appellate court to meticulously re- evaluate the entire evidence; counsel prays that the Court exercises its power to review the trial records, allow the appeal, set aside the conviction, and quash the unlawful death sentence. 19. In opposing the appeal, learned counsel for the respondent led submissions dated 6th August 2025. In countering the rst two grounds of appeal, which allege that the conviction relied on unsubstantiated allegations and should have instead been categorised as simple assault, counsel outlines the specic statutory framework governing robbery with violence under the Penal Code. Citing the case of Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR), the prosecution claried that the three elements of the oence are read disjunctively, meaning proving just one element is sucient for a conviction. 20. Counsel argued that the trial court's nding was legally sound because the evidence established that the appellant was armed with a slasher while stealing miraa from a farm, and subsequently used actual, grievous violence to inict multiple severe wounds on PW1. Because the appellant used an oensive weapon and caused bodily harm immediately after the theft, counsel submits that the ingredients of robbery with violence were explicitly satised, ruling out a lesser charge of assault. 21. Regarding the third ground of appeal, which alleges that the death penalty was an excessive sentence, the prosecution maintained that the sentence remains legal as far as cases of robbery with violence are concerned. Citing Bernard Kimani Gacheru v Republic [2002] eKLR, counsel asserted that an appellate court should not lightly interfere with a trial court's sentencing discretion unless it is manifestly excessive or based on wrong principles. Counsel argued that the death sentence is commensurate with the gravity of the oence, noting that the appellant showed no remorse during mitigation, oering only the detail that his father had passed away. 22. Finally, counsel discredits the nal two grounds of appeal regarding hearsay evidence and the rejection of the appellant's defence. Counsel submits that the conviction was built on direct, consistent eyewitness testimony from witnesses who observed the attack, alongside corroborating medical evidence from a clinical ocer (PW4), thereby neutralising any claims of hearsay. 23. Furthermore, counsel defended the trial court's rejection of the appellant's sworn defence, in which he claimed he was actually the one beaten by the witnesses, by pointing out that he failed to provide any medical treatment notes to support his claims. Because the appellant introduced these allegations as an uncorroborated afterthought that was never brought up during cross-examination, counsel concludes that the trial court properly evaluated the evidence and prays for the appeal to be dismissed entirely. 24. Having considered the record of appeal, the rival submissions and the law, we are of the view that the appeal turns on the following issues: i. Whether the prosecution proved the oence of robbery with violence beyond reasonable doubt; ii. Whether the High Court discharged its duty as a rst appellate court; iii. Whether failure to call certain witnesses was fatal to the prosecution case; iv. Whether the appellant’s defence was properly considered; and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1701/eng@2026-09-25 4

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v. 25. Whether the sentence imposed warrants interference by this Court. This being a second appeal, our mandate is conned to matters of law under section 361 of the Criminal Procedure Code. We are slow to interfere with concurrent ndings of fact by the two courts below unless such ndings are based on no evidence or are plainly perverse. In Ondeng' v Republic (Criminal Appeal 5 of 2013) [2014] KECA 523 (KLR) this Court held as follows: “ From the outset we must reiterate that this being a second appeal, the jurisdiction of this Court is limited to consideration of issues of law only. Section 361 of the Criminal Procedure Code stipulates that a second appeal to this Court is only on points of law. The essence of that provision is that in a second appeal, the issues of fact will have been settled by the trial and the rst appellate courts and that this Court will, except in exceptional circumstances, concern itself only with the application of the law to the facts as settled by the two courts below.” 26. On the rst issue, the ingredients of the oence of robbery with violence under section 296(2) of the Penal Code are now settled. In Oluoch & Another v Republic (Criminal Appeal 98 of 2016) [2022] KECA 1260 (KLR), this Court held that for the prosecution to sustain a conviction for the oence of robbery with violence, it needs to establish and prove three essential ingredients: the oender was armed with a dangerous or oensive weapon or instrument; the oender was in the company of one or more person or persons; or at or immediately before or immediately after the time of the robbery the oender wounds, beats, strikes or uses other personal violence to any person. 27. Similarly, in Johana Ndungu v Republic [1996] eKLR this Court emphasised that proof of any one of the above ingredients is sucient to sustain a conviction for the oence of robbery with violence. 28. In the present appeal, the evidence on record established that the appellant was armed with a cline slasher while harvesting miraa from PW1’s employer’s farm, and when confronted by PW1, the appellant cut him several times on the mouth and hands. PW2 and PW3 corroborated PW1’s testimony. Both testied that they found the appellant assaulting PW1 while armed with a slasher and that the appellant escaped carrying a sack containing miraa. PW4 produced medical evidence conrming that PW1 sustained grievous harm, including fractures and multiple cut wounds. 29. We are satised that the evidence established beyond reasonable doubt that the appellant used actual violence during the theft and was armed with a dangerous weapon. The ingredients of the oence under section 296(2) were therefore proved. 30. The appellant contended that the incident arose from a land dispute and amounted merely to an aray or assault. However, both the trial court and the rst appellate court rejected that explanation after evaluating the evidence. The complainant’s evidence, corroborated by PW2 and PW3, clearly showed that the appellant was found harvesting miraa unlawfully and that he used violence in order to facilitate his escape with the stolen produce. The existence of a prior disagreement over the farm, even if assumed, did not negate the oence disclosed by the evidence. 31. On whether the High Court discharged its mandate as a rst appellate court, the law is equally settled. In Okeno v Republic [1972] EA 32, the predecessor of this Court stated that a rst appellate court is under a duty to reconsider and re-evaluate the evidence afresh and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 32. We have carefully perused the judgment of the High Court. The learned Judge summarised the evidence tendered before the trial court, reconsidered the same, addressed the appellant’s grounds of appeal, and independently concluded that the prosecution had proved the charge beyond reasonable https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1701/eng@2026-09-25 5

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doubt. We are therefore unable to agree with the appellant’s contention that the High Court Judge merely reproduced the evidence without undertaking its own evaluation. 33. The appellant further faulted the prosecution for failure to call certain witnesses, including the owner of the miraa farm Silas Ngorua. The applicable principle is that the prosecution is not obliged to call a superuity of witnesses in order to prove its case. The principle is captured in Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR), where the court stated that the prosecution must call essential witnesses, but failure to call every witness is not fatal if the evidence on record is sucient. In Julius Kalewa Mutunga v Republic (Criminal Appeal 31 of 2005) [2006] KECA 79 (KLR), this Court held that: “ The prosecution is not obliged to call a superuity of witnesses.” 34. In this appeal, the prosecution called ve witnesses, including three eyewitnesses who knew the appellant prior to the incident and who consistently narrated the circumstances of the attack and theft. Their evidence was corroborated by medical evidence. We are satised that the evidence adduced was sucient to establish the charge and that failure to call additional witnesses was not fatal to the prosecution case. 35. As regards whether the appellant’s defence was considered, the record shows that both courts below considered it and rejected it as unpersuasive. The appellant alleged that he had himself been assaulted and that his treatment notes were conscated. However, no evidence was tendered in support of those allegations. Further, the defence did not dislodge the consistent and corroborated prosecution evidence placing the appellant at the scene and directly linking him to the oence. 36. In Barasa v Republic (Criminal Appeal E032 of 2021) [2026] KECA 938 (KLR), this Court held that a trial court is entitled to reject a defence that does not raise a reasonable doubt against the prosecution case. We nd no basis for interfering with the concurrent ndings of the two courts below regarding the appellant’s defence. 37. On sentence, we note that the appellant was sentenced to death. The Supreme Court in its directive in Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR), was clear that its decision only applied to cases of murder and does not apply to capital oences including robbery with violence. What this means is that for now the only available punishment for the oence of robbery with violence is death. In Mwaura & 2 Others v Republic (Criminal Appeal 5 of 2008) [2013] KECA 541 (KLR) this Court held that the death sentence under section 296(2) of the Penal Code is lawful and constitutional. The Court armed that the death sentence remains a legal punishment under Kenyan law. 38. Ultimately, we nd no merit in this appeal. We are of the view that the conviction was supported by cogent evidence, the law was properly applied, and no basis has been established for interfering with the conviction. As for the sentence, the same remains lawful for now, as we have demonstrated above. 39. Accordingly, the appeal is dismissed in its entirety. The conviction and sentence are hereby upheld. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ........................ JUDGE OF APPEAL K. M’INOTI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1701/eng@2026-09-25 6

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........................ 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/2026/1701/eng@2026-09-25 7

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