Mohammed Mbugua Kamau v Republic

of the Penal Code. It was alleged that on the 5th day of February 2013, at Nyahururu Ziwani Estate within Laikipia County, jointly with others, while armed with dangerous weapons, namely pangas, swords and clubs, they robbed Cecilia Wambui Chege (deceased) and T.N.K. the items listed in the charge sheet and cash, and at or immediately before or immediately after the time of such robbery, they killed the said Cecilia Wambui Chege and wounded T.N.K. It was also alleged that on the above date and place, jointly with others while armed with dangerous weapons, they robbed Teresia Njeri Karumba the items listed in the charge sheet and at the time of the robbery or immediately before or thereafter they wounded her. 3. The appellant faced a third count of delement contrary to Section 8 (2) of the Sexual Offences Act, the particulars being that on the same date and place, he intentionally and unlawfully caused his penis to penetrate the vagina of T.N.K., a girl aged 17 years old. 4. In the ensuing trial, the prosecution marshalled a total of 10 witnesses. The totality of the prosecution evidence was eye witness identication, ngerprint matching, forensic ndings and a confession linking the appellant with the crimes. The appellant denied committing the said crimes asserting that he was not properly identied. After considering the evidence tendered by the prosecution and the defence, the trial magistrate returned a verdict of guilty and convicted the appellant on both counts of robbery with violence and sentenced him to suer death. He also convicted him of the oence of delement but held the sentence in abeyance. 5. The appellant appealed to the High Court at Nyahururu in HCCRA No. 136 of 2017 challenging both conviction and sentence citing insucient evidence, missing exhibits and claiming there was a mis-trial. After re-evaluating the evidence and the law, Wendoh, J. ruled that: (a) the complaint that the prosecution was a mistrial had no basis because the witnesses were recalled upon request by the accused persons or to identify exhibits; (b) the confession by Samuel Mwangi Mwai did not meet the standards required under the Evidence (Out of Court Confession) Rules, 2009, because inter alia, the recording ocer did not establish his preferred language, whether he was tortured, or the particulars of his mother. The confession was therefore found to be of no evidential value; (c) the appellant’s identication by way of ngerprints was safe to nd a conviction. The expert evidence demonstrated that the prints lifted from the scene matched those of the appellant. The Court held that this evidence irresistibly placed the appellant at the scene of the robbery. Consequently, the learned Judge upheld the appellant’s conviction on the two counts of robbery with violence. The appeal against conviction for delement was allowed, and the appellant was acquitted on the said count. The court further reviewed the sentence from death to life imprisonment on each of the two counts of robbery with violence and ordered the sentences to run concurrently. 6. Undeterred, in his quest for justice, the appellant is now before this Court in this second appeal, and probably his last appeal faulting the learned judge for: (a) the manner in which it handled the evidence, especially, regarding the exhibits and ngerprint analysis; (b) failing to nd reasons for the removal of exhibits which aected the integrity of the proceedings; (c) failing to ensure a fair hearing when it recalled multiple witnesses several times; (d) conrming the conviction without properly considering contradictory witness evidence; (e) failing to note that the evidence was supercial and not from experts, leading to a wrong negative inference; (f) failing to nd that the identication evidence did no place him at the scene; (g) the sentence imposed is harsh and excessive. 7. During the virtual hearing of the appeal on 13th July 2026, learned counsel Mr. Omutelema, Senior Assistant Director of Public Prosecution appeared for the respondent while learned counsel Mr. Kenda appeared for the appellant. In support of the appeal, Mr. Kenda relied on his written submissions dated 28th November 2025. He submitted that the appellant’s co-accused’s confession which was found to be inadmissible led to the appellant’s arrest. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2079/eng@2026-10-02 2

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8. Counsel submitted that before circumstantial evidence can form the basis of a conviction, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the oence. In support of this proposition, counsel cited Ernest Abanga alias Onyango vs. Republic, Court of Appeal at Kisumu, Criminal Appeal No. 32 of 1990 (Unreported) in which this Court stated that where a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and rmly established; (b) those circumstances should be of a denite tendency unerringly pointing towards guilt of the accused; (c) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In addition, the prosecution must establish that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt. 9. Mr. Kenda also submitted that the prosecution relied on ngerprint evidence, but the chain of custody was not established. He argued that the forensic report was not placed before the Court during the hearing of the appeal, and the ngerprint expert could not tell where the prints were lifted from. Therefore, the conviction was unsafe. 10. Regarding sentence. Mr. Kenda described it as manifestly harsh and disproportionate, necessitating interference by this Court. He relied on Amolo vs. Republic [1991] KLR 456 to argue that appellate courts may review sentences that are harsh and unjust. Lastly, counsel argued that the court did not consider mitigating circumstances. 11. In opposing the appeal, Mr. Omutelema relied on his written submissions dated 12th February 2024. He maintained that the two courts below considered the evidence on identication and even though the conditions for identication were dicult, correctly applied the proper legal principles regarding the evidence of identication in dicult conditions set out in Maitanyi vs. Republic [1986] eKLR. Counsel argued that there are concurrent ndings by the two courts below that the appellant was properly identied, and that PW2 was a credible witness. 12. Counsel submitted that the appellant was convicted on the strength of ngerprint evidence which identied him as one of the robbers who attacked PW2 and her mother. He pointed out that PW8 visited the scene soon after the robbery, took photographs of the scene and also lifted ngerprints from a glass wall unit and a table in the bedroom. PW5 concluded that the ngerprints belonged to the appellant. Further, the two courts below were satised as to the suciency of this evidence. Mr. Omutelema also submitted that the prosecution proved all the ingredients of the oence of robbery with violence. 13. Lastly, Mr. Omutelema submitted that the appellant’s defence was silent on the events that took place on the material day, which is 5th February 2013. Instead, in his unsworn statement, he alluded to events that took place on 12th February 2013. Therefore, his defence did not shake the prosecution evidence. He urged this Court to dismiss the appeal and uphold both the conviction and sentence. 14. This is a second appeal, therefore, our jurisdiction is limited to consideration of matters of law as stipulated by Section 361 of the Criminal Procedure Code. A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at by the two courts below unless such ndings are based on no evidence. (See this Court’s decisions in David Njoroge Macharia vs. Republic [2011] eKLR, Chemogong vs. R [1984] KLR 611 and Ogeto vs. R [2004] KLR). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2079/eng@2026-10-02 3

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15. This Court in Johana Ndungu vs. Republic [1996] eKLR determined the three sets of circumstances, which if any one of them is proved, will constitute the oence of robbery with violence under Section 296 (2) of the Penal Code as follows: “ (i) if the oender is armed with any dangerous or oensive weapon or instrument; or (ii) if he is in company of one or more other person or persons; or (iii) if at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” (See also Oluoch vs. Republic [1985] KLR). 16. Similarly, this Court in Dima Denge & Others vs. Republic [2013] eKLR stated as follows: “the elements of the oence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sucient to sustain an oence of robbery with violence.” There is no contest that the oenders were armed with dangerous weapons, that the assailant was in the company of one or more persons and that during the robbery or immediately thereafter, the victims were subjected to serious violence which caused the death of one of the victims. Regarding the violence, PW2 gave a detailed account of how they were attacked by armed robbers together with her mother who was fatally injured and her brother. She was deled during the attack. 17. Her evidence was supported by PW3, CPL David Nyamu, a scenes of crime ocer, who visited the scene on the night of the incident who testied that he found PW2 on the road side, injured on the right leg and crying. He broke the main gate and upon entering the house, he found a dead body of a lady with stab wounds and a boy hiding under the bed. He called scenes of crime ocers who took photographs of the scene and lifted nger prints from the scene. He also found a panga, a knife, a blanket, and a piece of wood. PW4, Dr. Frida Odera, a Medical Ocer, produced the post-mortem report she prepared following the post-mortem examination conducted on 18th February 2013 which indicated that the deceased died as a result of severe loss of blood due to a stab wound. 18. PW1, David Karumba, the deceased's husband, testied that on 5th February 2013 he received a call from Nyahururu District Hospital informing him to proceed there. Upon arrival, he found his daughter, T.N.K., admitted with a fractured right foot and learnt that his wife had succumbed to injuries inicted on her. He observed that the deceased had sustained a cut wound to the abdomen. On returning home, he found the house ransacked and a video player missing. He later attended the postmortem examination and, at the police station, he was shown suspects as well as two mobile phones, which he identied as belonging to his wife. From the above evidence, there is no doubt that the ingredients of the oence of robbery with violence as detailed earlier were established to the required standard. 19. The germane question is whether the prosecution proved its case against the appellant to the required standard. Central to this question is whether the appellant was properly identied as one of the attackers. According to the appellant’s counsel, inadmissible evidence led to the appellant’s arrest. The inadmissible evidence alluded to here is a confession by one of the appellant’s co-accused (who is said to have been released from prison under unclear circumstances during the pendency of his appeal before this Court). Counsel correctly argued that the said confession was found to be inadmissible by the High Court. To that extent, the appellant’s counsel is right. We agree entirely that the High Court properly rejected the confession. But that is not the germane evidence upon which the appellant’s appeal before the High Court collapsed. The appellant was convicted on the strength of nger print evidence which placed him at the crime scene. PW8 visited the scene soon after the robbery, took photographs of the scene and also lifted ngerprints from a glass wall unit and a table in the bedroom. PW5, the ngerprint analyst concluded that the ngerprints belonged to the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2079/eng@2026-10-02 4

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20. Fingerprint evidence placing an accused person at a crime scene is categorized as circumstantial evidence. Its evidential value is exceptionally high, but it is not automatically conclusive of guilt. The presence of an accused's ngerprints at the scene creates a prima facie case regarding their presence, which can harden into conclusive proof if left uncontroverted. Section 48 (1) of the Evidence Act permits courts to rely on the opinions of experts especially skilled in nger impressions. However, courts evaluate the evidence through strict legal thresholds regarding the weight, admissibility, and potential risks of relying on ngerprint identication to secure a conviction. This Court in Kinyanjui vs. Republic [1981] KECA 53 (KLR), a landmark decision governing cases where ngerprint impressions are the sole basis for a conviction held that if an innocent explanation exists demonstrating how the prints got there, or if other evidence (like eye-witness identication) contradicts it, a conviction cannot stand. However, as was held in James Lokoyen Etibor & 2 Others vs. Republic [2018] KECA 146 (KLR), properly lifted crime scene impressions, veried by an ocial Forensic Fingerprint Bureau Examiner, form highly cogent and credible circumstantial evidence when seamlessly woven with other narrative facts of the case. 21. When the prosecution introduces undisputed expert evidence matching a latent print from a crime scene to the accused, the legal status of the evidence transforms as follows: (a) Prima Facie Proof: Unchallenged expert ngerprint evidence constitutes prima facie proof of the accused's presence. (b) Shifting Evidential Burden: Once prima facie status is established, the evidential burden (onus of rebuttal) shifts to the defense. The accused must provide a reasonably possibly true explanation for how their ngerprint came to be on that specic surface or object. SUBPARA (c) Conclusive Proof via Silence: If ngerprints are found at a critical point of a crime scene (e.g., on a wall directly above a deceased victim) and the accused elects not to testify or provide an explanation, that prima facie evidence matures into conclusive proof. A simple lapse of memory or blanket denial does not suce to counter it. (See Lekgau vs. S (A191/15) [2016] ZAGPPHC 281 (9 March 2016)). 22. Because ngerprints are circumstantial, the Court must subject them to the landmark two cardinal rules of inferential reasoning outlined in R vs. Blom 1939 AD 188: (a) The inference that the accused was at the scene to commit the crime must be consistent with all the proven facts. (b) The proven facts must exclude every other reasonable inference except the guilt of the accused. Fingerprints do not carry a time stamp. If an accused had legitimate prior access to the premises (e.g., an employee, a previous guest or a contractor), the presence of the print loses its criminal context unless the state can prove it was left at the time the oense occurred. The defense can completely dismantle the evidential value by exposing contamination at the crime scene, improper lifting techniques, or a failure to document a secure chain of custody from the scene to the forensic lab. This position was armed by the Supreme Court of India in Mohd. Aman vs. State of Rajasthan [1997] 10 SCC 44 which held that the prosecution must prove a perfect chain of custody. If there is a "glaring missing link" between the moment the print is lifted and its comparison at the laboratory, the Court will reject the forensic opinion to safeguard the accused against intentional planting or accidental contamination. 23. PW8, CPL Joel Koskey, a scenes of crime ocer visited the scene in the company of PW9 CPL Marube. He lifted ngerprints from a glass wall unit and a table in the bedroom at the scene of crime. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2079/eng@2026-10-02 5

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He prepared an exhibit memo form and forwarded the exhibits to CID Headquarters for analysis. He received a ngerprint report from the ngerprint analyst dated 29/11/2013 and processed the photographs at CID Headquarters which he produced in court as Exh.10 (a)-(m). The report showed that the suspect’s nger prints matched the samples lifted at the scene. PW5, CPI Paul Ndirangu, a ngerprint expert with 28 years of experience, testied that he received ngerprints lifted from the scene and compared them with the appellant’s ngerprints. He demonstrated to the trial court the 16 characteristics that matched, and concluded that the ngerprints belonged to the appellant. 24. There is clear evidence explaining how the nger prints were lifted and forwarded for analysis. There is nothing to suggest that the chain of handling the specimen was broken. More important, the presence of the appellant’s nger prints inside the victims’ house remains unexplained. There are concurrent ndings by the two courts below that the above evidence was credible. As was held in R. vs. Castleton [1909] 3 Cr. App. R. 74 (UK), an early English Court of Appeal decision, a ngerprint match, even standing alone, could legally suce to support a conviction if the identication by the expert was completely uncontradicted and positive. The appellant’s defence was a mere denial. He claimed his prints might have been taken at the police station. This assertion does not address the presence of his nger prints at the crime scene. The prints were found at the scene immediately after the robbery. The expert analysis conrmed they belonged to the appellant. This evidence unerringly points to his guilt. The chain is complete. There is no other plausible explanation as to how the nger prints got into the crime scene other than the conclusion that the appellant was present at the scene during the robbery. Accordingly, we nd that the appellant’s conviction was safe. 25. Regarding sentence, the High Court reduced the mandatory death sentence to life imprisonment in line with the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. However, the Supreme Court subsequently claried that its landmark 2017 decision applies strictly to murder cases and cannot be automatically extended to robbery with violence cases. This critical legal boundary was drawn in Francis Karioko Muruatetu & Another vs. Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR (often referred to as the Muruatetu Clarication/ Directions Ruling). Therefore, the appellant is serving a penalty that is not prescribed by the law for the oences he was tried and convicted. Consequently, we are unable to interfere with the sentence, and, in any event, there was no such invitation by the respondent. The upshot of the foregoing is that this appeal fails on both conviction and sentence. We hereby dismiss it in its entirety. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2079/eng@2026-10-02 6

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Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2079/eng@2026-10-02 7

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