Sigilai & another v Republic

where he identied the rst appellant as among those who robbed him of the four heads of cattle but which had already been recovered. He was however unable to identify the 2nd appellant. 3. PW2 on approaching the scene saw PW1 kneeling while being assaulted by the appellants. When they confronted him menacingly, he ran to the nearby Nyangeta police station and reported the incident. Later he was called for a police identication parade where he identied both the appellants as those, he saw assaulting PW1 in separate parades. PW3 APC Samson Korir whilst on routine patrol arrested the 2nd appellant at a drinking den and as he escorted him to the station, he received a call from his superiors to hand him over to the regular police as he was a suspect in a robbery with violence case under investigations. 4. PW4, the owner of the four heads of cattle, conrmed that PW1 was her employee and had been robbed of the cattle. She arranged for the evacuation of the PW1 to hospital and later reported the robbery to the local police station. The four heads of cattle valued at Kshs.200,000/= were subsequently recovered in Nandi Hills and handed over to her after they were photographed. PW5 Dr. Edy Omondi Mboya produced the P3 form prepared by Dr. Olwala conrming injuries sustained by PW1 and which were classied as harm and caused by both sharp and blunt objects. PW6 PC Abdulahi Gilo, from the crime scene support sta services took photographs of the recovered cows and produced them in evidence. PW7 PC Isaac Wanamboi, the investigating ocer traced the stolen cows to Nandi Hills where they were recovered, caused them to be photographed before he released them to, PW4. In the course of his investigations, he received information that the appellants were the main suspects. He later caused their arrest, arranged police identication parades which were conducted by I.P. Kinuthia and the appellants were positively identied by PW1 and PW2 whereupon he preferred the charge. 5. Placed on their defence, the appellants in their statements of defence denied ever being involved in the crime. 6. The trial court in its judgment found that PW1 had been violently robbed of the four heads of cattle which were later recovered from Nandi Hills. That the injuries he suered as a result were corroborated by medical evidence, and that the identication of appellants by PW1 and PW2 at the scene of crime as well as on the police identication parades was credible noting that both had sucient opportunity to observe the appellants. The recovery of the cattle further strengthened the prosecution’s case. 7. The trial court rejected the appellants’ defence as mere denials incapable of dislodging the consistent and corroborated prosecution evidence. Accordingly, it convicted the appellants of the oence and imposed the mandatory sentence of death. 8. Dissatised with the conviction and sentence aforesaid, the appellants lodged an appeal in the High Court of Kenya at Kisumu faulting the trial court for: relying on weak and contradictory identication evidence, failing to properly evaluate their defence; relying on improperly conducted police identication parades; relying on insucient prosecution case and inconsistent medical evidence and imposing the mandatory death sentence that was harsh and excessive in the circumstances. 9. The rst appellate court upon re-evaluating the evidence, upheld the conviction and sentence entered by the trial court ultimately dismissing the appeal in its entirety. 10. Aggrieved again by the concurrent ndings of the trial and the rst appellate courts, the appellants led the instant appeal faulting the two courts for failing to adequately re-evaluate the legality, propriety and proportionality of the sentence imposed; the conviction was unsafe as it rested almost entirely on visual identication evidence by PW1 and PW2 in dicult circumstances; no stolen property or weapon was recovered from them; both PW1 and PW2 did not give a description of the appellants in their initial report to police and that no evidence of recent possession was tendered. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1879/eng@2026-09-25 2

page 2 of 6

11. When the appeal was called out for plenary hearing, the appellants appeared from Kisumu Maximum Prison on our virtual platform, being represented by Ms. Lumallas, learned counsel. The respondent was on the other hand represented by Ms. Busienei, learned prosecution counsel. Both counsel opted to rely entirely on their written submissions that they had led and exchanged. 12. Counsel for the appellants argued that the conviction of the appellants was unsafe as it rested entirely on visual identication evidence by PW1 and PW2. in dicult circumstances. Citing Maitanyi v Republic [1986] KLR 198, counsel emphasized that evidence of visual identication must be tested with the greatest care, particularly where circumstances are dicult, and argued that PW1 was under stress and fear, making accurate observation of the appellants unlikely. She further relied on Wamunga v Republic [1989] KLR 424, where the Court warned that visual identication can lead to miscarriage of justice unless carefully tested, and contended that both courts below failed to interrogate the evidence of identication adequately. 13. Counsel also invoked Simiyu & Another v Republic [2005] 1 KLR 192, in submitting that the failure of PW1 and PW2 to give an initial description of the appellants in their rst report to the police weakened their subsequent identication of the appellants. On the conduct of the police identication parade, she argued that the ocers who conducted the parades were not called to testify, thereby undermining its evidential value, citing Ajode v Republic [2004] 2 KLR 81 which stressed the need for strict compliance with police identication parade procedures. On theft, she submitted that no heads of cattle were recovered from the appellants, no witness saw them take or retain the cattle, and no evidence of recent possession was tendered implicating them. She invoked Sawe v Republic [2003] KLR 364, in which it was held that suspicion, however strong, cannot be a substitute for proof beyond reasonable doubt. 14. On sentence, counsel submitted that both appellants presented mitigation which were nonetheless disregarded by the trial court. She argued that the mandatory death sentence imposed denied the trial court discretion and was inconsistent with constitutional principles of dignity, fairness, proportionality, and individualized sentencing. Counsel relied on the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which declared mandatory nature of the death sentence unconstitutional and recognized mitigation as a constitutional right and also emphasized individualized sentencing. She further cited William Okungu Kittiny v Republic [2018] eKLR, where the Court armed discretion to impose sentences other than death in capital oences; Jared Koita Injiri v Republic [2019] eKLR, where a death sentence was substituted with a determinate custodial term; and Dismas Wafula Kilwake v Republic [2018] eKLR, which emphasized proportionality, dignity and fairness in sentencing. She submitted that the appellants had already served about twelve years in prison, which was in itself a sucient punishment achieving deterrent and retributive objectives, and that they had prospects of reform and rehabilitation. 15. Counsel urged the Court to invoke section 333(2) of the Criminal Procedure Code to account for time spent in remand custody as their trial was being processed, in the event that the court was to interfere with the sentence. 16. Counsel for the respondent in opposition to the appeal submitted that the prosecution proved its case beyond reasonable doubt and that all the ingredients of robbery with violence were established. She emphasized that PW1 gave credible evidence of being violently attacked by the appellants whilst armed with a panga, iron bar, bows and arrows, and that PW2 corroborated this account by testifying that he found PW1 being assaulted by the appellants. She cited Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR, where this Court reiterated that robbery with violence is proved if the oender is armed with a dangerous weapon, is in the company of others, or uses personal violence on the victim, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1879/eng@2026-09-25 3

page 3 of 6

and that proof of any of the above suces. Counsel argued that in this case all the three ingredients were proved. 17. Turning to identication, counsel submitted that the incident occurred in broad daylight at 1:00p.m., giving PW1 and PW2 sucient opportunity to observe the appellants suciently to be able to subsequently identify them. She noted that PW1 identied the 1st appellant, while PW2 identied both appellants in the separate police identication parades. Although IP Kinuthia who conducted the parades was not called to testify, PW7 produced the parade forms without objection from the appellants, who proceeded to cross-examine him. Counsel maintained that there was full compliance with the police Identication Parade Rules. 18. On sentence, counsel relied on Nillson v Republic [1970] EA 599 and Ogalo s/o Owuora v Republic [1954] 21 EACA 270, where the courts held that an appellate court will not ordinarily interfere with a sentence unless the trial court acted on wrong principles, overlooked material factors, or imposed a manifestly excessive sentence. She further cited the Supreme Court directions in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR), arming that the death penalty remains lawful mandatory sentence in other capital oences other than murder. Counsel submitted that the trial court heard the appellants’ mitigation but was convinced that the death penalty was the only sentence available in the circumstances. She therefore urged the Court to dismiss the appeal in its entirety. 19. We have carefully considered the grounds of appeal, the submissions by counsel, the authorities cited, and the applicable law. Being a second appeal, our jurisdiction under section 361 of the Criminal Procedure Code is conned to consideration of issues of law only. Ordinarily, we are bound by the concurrent ndings of fact by the two courts below, save in rare cases where those ndings are based on no evidence, misapprehension of evidence, or are plainly untenable. See Karingo v Republic [1982] KLR 219. 20. The issues that we discern for determination in this appeal are whether the oence charged was proved and whether the sentence imposed was proper, proportionate and consistent with constitutional principles. 21. On the rst issue, the law requires the prosecution to prove beyond reasonable doubt the elements of any oence. The key ingredients of robbery with violence are found in section 296(2) of the Penal Code. It provides inter alia: “ if the oender is armed with any dangerous or oensive 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….” 22. In Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR, this Court claried that proof of any one of the above ingredients, that is, being armed with a dangerous weapon, being in company of others, or using personal violence on the victim suces. In the present appeal PW1 testied that he was attacked by the appellants who were armed with a panga, iron bar, bows and arrows, which were dangerous and oensive weapons in the circumstances, and the four heads cattle that he was herding on behalf of his employer were stolen by the appellants. In the process he was cut and beaten and seriously injured. He was able to identify the appellants in the act as it was committed in broad daylight,PW2 corroborated this account, and PW5 conrmed injuries consistent with the use of both sharp and blunt objects. Thus, all the three ingredients of the oence were proved. Yes, in Sawe v Republic (supra), it was held that suspicion, however strong is no substitute for proof of an oence. However, that mantra https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1879/eng@2026-09-25 4

page 4 of 6

has no bearing on this appeal as the prosecution tendered direct and corroborated evidence in support of the oence which strongly implicated the appellants. 23. On the question of identication of the appellants, we revert to the celebrated English case of R v Turnbull & Others [197]) 3 All ER 549, in which guidelines as to how to treat evidence of identication in dicult circumstances were laid down. Uppermost, the trial court should consider scrupulously the circumstances of identication, including the duration of observation, distance, lighting conditions, any impediments, prior familiarity, and consistency of description. This Court in Wamunga v Republic (supra) cautioned that identication evidence must be watertight before it can safely ground a conviction. In the circumstances of this appeal the evidence shows that PW1 and PW2 had sucient opportunity to observe the appellants. The oence was committed in broad daylight at about 1PM to be precise, the appellants were not camouaged at all, they spent a lot of time with the witnesses lasting close to an hour in close proximity and with no impediments whatsoever. This allowed for sustained observation rather than a eeting glance of the appellants. 24. In our view, the above circumstances enabled PW1 and PW2 to positively identify the appellants during the attack and later at properly conducted identication parades. 25. Although the appellants relied on Maitanyi v Republic (supra) and Simiyu & Another v Republic (supra) to argue that PW1 was under stress and no initial description was given, the respondent demonstrated that the identication occurred under favourable conditions. The identication parade, though challenged, was explained by PW7 who produced the parade forms without objection, and the appellants cross-examined him. In line with Ajode v Republic (supra), the Court found no irregularity sucient to vitiate the parades and we agree. 26. In sum, when the cited authorities are applied to the facts of this case, the identication evidence was suciently safe. 27. On the question of sentence, the Court observed that section 296(2) of the Penal Code prescribes death as the only penalty available upon conviction for the oence of robbery with violence, and both the two courts below properly invoked it. The appellants have argued that the sentence was harsh, excessive, and imposed under a mandatory regime that denied discretion that was frowned upon by the Supreme Court of Kenya in Francis Karioko Muruatetu & Another v Republic (supra), which held that the mandatory nature of the death sentence in murder cases was unconstitutional. It also pointed out that consideration of mitigation is a constitutional prerequisite and sentencing must be individualized. 28. The appellants’ contention was that their personal circumstances, including being rst oenders, one an orphan with dependents and the other unwell with family responsibilities, were disregarded. The respondent countered that argument by submitting that the death penalty remains lawful punishment, citing the Supreme Court’s decision in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (supra), which claried that the mandatory nature of the death penalty was unconstitutional in murder cases only. That courts retain discretion to impose it in other capital oences. The respondent further relied on Nillson v Republic [1970] EA 599 and Ogalo s/o Owuora v Republic [1954] 21 EACA 270, in which it was held that appellate courts will not normally interfere with the sentence imposed by the trial court unless it acted on wrong principles, overlooked material factors, or imposed a manifestly excessive sentence. 29. In applying these principles the court emphasized that the trial court had considered mitigation but was satised that the circumstances warranted the ultimate penalty. Guided by the Supreme Court’s clarication that the mandatory death remains lawful as a punishment in other capital oences, we are satised that the sentence imposed was the only lawful sentence available to the two courts below. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1879/eng@2026-09-25 5

page 5 of 6

30. Ultimately, the appeal is wholly devoid of merit, fails in its entirety, and is hereby dismissed. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA JUDGE OF APPEAL E.C. MWITA JUDGE OF APPEAL B. ONGAYA JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1879/eng@2026-09-25 6

page 6 of 6