Walter Moturi Nyakina v Republic

ii. whether the Appellant actually stole the Complainant's items as contemplated in the Doctrine of Recent Possession iii. whether the Appellant's defence raised material doubts to the prosecution's case which should have led to his exoneration iv. whether the prosecution proved its case beyond reasonable doubt. Submissions on Appeal 3. I will set out the Appellant’s submissions on each of his grounds of appeal and the Respondent’s response submissions on the same Issue 1: Whether the Appellant's identiffcation was free from error and possible mistake. 4. The Appellant submitted that the question to focus on in identification is, whether the said attacker was the Appellant. The question of accuracy in identification must be proven beyond reasonable doubt as was stated in the case of David Mwangi Wanjohi & 2 Others Versus Republic [1989] eKLR, where the court held that: “ It is a trite law that for a proper identification to be asserted, descriptions and features which would enable the victim to identify the alleged assailant better is a mandatory requirement.” 5. The Appellant cited the English case of Gayle (1999) 2 Criminal Appeal R 130, in which it was stated that: “ A mere description of the culprit or his clothing is not identification evidence, even if it closely matches the appearance or clothing of the defendant." 6. The Appellant cited other cases, the case of Paul Etole and Another Versus Republic Court of Appeal Criminal Appeal No. 24 of 2000, where the Court of Appeal stated :“ It was essential that there should have been an inquiry as to the nature of the light available which assisted the witnesses in making recognition. What sort of light, its size and position vis-a-vis the accused would be relevant. In the absence of any inquiry, evidence of recognition may not be held to be free from error." 7. In Matianyi Vs Republic (1986) KLR 198, the Court of Appeal, in holding that inquiry as to the intensity of light is essential in testing the accuracy of identification, held: “ The strange fact is that many witnesses do not properly identify another person in daylight .............. It is at least essential to ascertain the nature of light available. What sort of light, its size and its position relative to the suspect, are al important matters helping to test the evidence with the greatest care. It is not careful test if none of these matters are known because they were not inquired into......” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 2

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8. In the case of Toroke Versus Republic Court of Appeal Criminal Appeal No. 204 of 1987 (unreported), the Court of Appeal held: “ It is quite possible for a witness to believe quite generally that he had been attacked by someone he knows yet be mistaken, so the possibility of error is still there whether it be a case of recognition or identification.” 9. That the question must be resolved by the view the court takes of the identification of the Appellant by the complainant as the alleged robber. At the outset, the court must examine the conditions that existed at the time and place of the robbery and their favourableness or otherwise to positive identification or recognition as alleged by the complainant in this case, as well as the state of mind of the complainant which would determine whether she had capacity to identify the Appellant. 10. The circumstances in which the alleged identification was done must be considered. In this case, the incident allegedly occurred at night (7.00 pm) and without proper lighting, which circumstances make identification difficult. There was no description of the intensity of the lighting by which the complainant saw and recognized the Appellant. There was claim that the complainant heard the robber speak but the identification was not based on voice. 11. The Appellant submitted that the claims fronted by PW1 in the absence of any other description, was not sufficient and that the trial court failed to interrogate into the claim of the identification bearing in mind the time in which the alleged robbery took place and the source, nature and position of the light that would have been sufficient for a recognition or identification. 12. Based on the aforesaid, it is the Appellant's submission that the identification parade conducted did not comply fully with the relevant rules and therefore, the Appellant cannot be found guilty on the charge of robbery with violence based on that identification parade per se. 13. The Appellant further submitted that it is doubtful that the complainant was actually injured as alleged. The doctor in his testimony, stated that the complainant had been hit by a fist and that the probable weapon was a blunt object (a fist) not a knife (which is a sharp object) as was claimed by the complainant. The doctor did not see any injury on the neck contrary to the complainant's claims that the man held her at the neck. 14. The Appellant stated that it is on record the complainant testified of not being sure of the object that was used to hit her. Her testimony is clearly doubtful even from her own words during examination that: “I don't know what he used to hurt me. It is as if I saw a knife.” 15. The doctor categorically stated that: “If someone is strangled the injury would be noted. The very day the injury would be noted. It was not reported.” 16. That the complainant testified that immediately after the incident, she reported the matter at Athi River and was referred to the hospital. She stated that she was bleeding at the time. However, when she got to the hospital the doctor noted that she had changed her clothes. The question to ponder on is: where and how did she change her clothes yet she reported at Athi River and went straight to the hospital? 17. On the other hand, the Investigating Officer (I.O) in his testimony stated that: "she was strangled and she fell down. There was force on her neck. I saw injuries on her neck and left eye." 18. The contradictory statements between what the complainant, the doctor, and the I.O testified only suggest a frame-up to implicate the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 3

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19. The Appellant submitted that the above evidence was scanty and dispersed thus could not be used to establish that the Appellant was involved in causing the injuries sustained by the complainant. 20. In response to this ground of appeal, the Respondent observed that the Appellant submitted that the Identification Parade did not meet the required standard. The Respondent submitted that the complainant identified the Appellant positively and was free from error and possible mistake. The complainant indicated that when she met the Appellant it was in the evening and there was not much darkness, it was still light. She was able to see him well. Further was a light in the area that assisted in her identification of the Appellant. Further an Identification Parade was conducted where the complainant was able to identify the Appellant out of the members in the parade. The procedure of the Identification Parade is governed by the National Police Service Standing Orders. 21. PW 5 followed the rules as laid out in the procedure. The Appellant contended that since there were only 6 people as the prescribed 8 the parade and that the complainant identified the Appellant by touching and she did not indicate that she would identify in her first report that she would identify by touching. The Respondent submitted that these grounds do not render the identification an illegality. Not only was the Appellant identified positively by the complainant, but he was found with the complainant's phone and he could not issue a plausible reason for having her mobile phone. The Respondent submitted that this ground is an afterthought and urged the court to dismiss it. Issue 2: Whether the Appellant actually stole the Complainant's items as contemplated in the Doctrine of Recent Possession 22. The Appellant cited the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga Vs Republic Criminal Appeal No. 272 of 2005, the Court held that: “ It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other." (Emphasis supplied) 23. The prosecution alleged that immediately the complainant's items were stolen, a report was immediately made at Athi River Police Station. The report was captured in Occurrence Book Number 79/11/9/2021. A different report relating to the same items (especially the ID) was made at Mlolongo Police Station on 20/9/2021 (more than a week after the alleged incident) and also on 9/4/2021 (five months before the incident) as was revealed by Occurrence Book Number 41/09/4/2021 and yet the complainant stated that she had not lost her ID previously. It is illogical that a report made at Athi River Police Station on 11/9/2021 was finally captured at Mlolongo Police Station on 20/9/2021 as well as on 9/4/2021(initially) and finally the abstract stamped at Mlolongo Police Station on 20/9/2021. 24. The Learned Trial Magistrate, despite noting these inconsistencies, sided with the prosecution by introducing extraneous facts and failed to appreciate the Appellant's explicit defence which clearly explained what actually transpired leading to the recovery of the complainant's phone with the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 4

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25. It is worth noting as well that when the phone was found, it was still on. How possible was it that the Appellant left the phone on for all that time with the complainant's SIM card if indeed it had been stolen? 26. The Learned Trial Magistrate erroneously invoked the doctrine of recent possession despite the Accused providing a reasonable explanation for the possession as required of him in law and established precedence. 27. The Appellant referred to the case of Paul Mwita Robi Vs Republic Kisumu Criminal Appeal No. 200 of 2008, where the Court of Appeal observed that; “ Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is especially within the knowledge of the accused and pursuant to the provisions of Section 111 of the Evidence Act Chapter 80, the accused has to discharge that burden." 28. The Appellant submitted that he vividly and exhaustively discharged the burden of explaining how he came into possession on the complainant's phone and this was not discounted by the prosecution. The Appellant, therefore, beseeched this Honourable Court to make its independent finding on this fact based on evidence on record. In submitting on this ground of appeal, the Respondent noted that the Appellant had submitted that the learned trail magistrate erroneously invoked the doctrine of recent possession despite the Appellant providing a reasonable explanation for the possession as required of him in law and established precedence. He relied on the case of Kelvin Nyongesa & 2 others v Republic [2011] eKLR where Justice Majanja, J stated that the doctrine of recent possession entitles the court to draw an inference of guilt where the accused is found in possession of recently stolen property in unexplained circumstances. In the court of appeal decision of Eric Otieno Arum v Republic KSM CA Criminal Appeal No. 85 of 2005 [2006] eKLR it was states that: “ In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. The Respondent submitted that the ingredients for recent possession were proved. The stolen property of the complainant was found with the Appellant. When the mobile phone was found, the police officers were able to inform the sister to the complainant to inform her to attend to the police station which she did and positively identified her mobile phone as the one stolen. Thirdly the said mobile phone was stolen from her on that fateful evening as it was in her bag which was taken by the Appellant. The Appellant was not able to give a reasonable explanation as to why he had the complainant's mobile phone that was reported https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 5

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stolen. The Respondent cited the case of Kelvin Nyongesa & 2 others v Republic [2011] eKLR it was stated by the learned judges that: “ Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. This burden is evidential only and does not relieve the prosecution from proving its case to the required standard. That explanation need only be a plausible (see Malingi v Republic [1988] KLR 225. The Respondent cited the case of Paul Mwita Robi v Republic KSM Criminal Appeal No. 200 of 2008, the Court of Appeal observed that; “ Once an accused person is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is (sic) especially within the knowledge of the accused and pursuant to the provisions of section 111 of the Evidence Act Chapter 80, the accused has to discharge that burden”. 29. The Appellant did not offer a plausible and believable explanation of how he came about possession of the stolen mobile phone. The Respondent submitted that the doctrine of recent possession was proved and urge this honourable court to disregard and dismiss this ground of appeal. Issue 3: Whether the Appellant's defence raised material doubts to the prosecution's case which should have led to his exoneration. 30. The Appellant submitted that it was erroneous for the Trial Court to infer that the Appellant did not conclusively challenge the prosecution's evidence in his defence otherwise conferring a burden on the Appellant illegally as was advertently done in the instant matter, the prosecution did not investigate on the defence tendered to prove or disprove the same despite the wherewithal and therefore approached its core duty in an obscurest approach again prejudicing the Appellant's case since, had the same been done, the Appellant would not be here as he would have been exonerated. 31. That the Appellant testified how, one night on 2 August 2021 at 10:30pm, he met a prostitute whom they had an agreement for a sexual endeavour at a fee of Kshs.200/=. This ended up in being robbed Kshs.15,000/= by three women in a room the lady had led him into. He was thrown out whereby he screamed only to be called back by the ladies to pick his money. The two ladies (one missing) he found in the room told him that the other lady who had taken his money had run away but had forgotten behind her phone. The ladies gave him the phone as security and asked him to leave his number with them so that they will call him later, when the lady came back, for him to recover his money. The ladies told him to hold on the phone until his cash is refunded. 32. The Appellant stated that he left for his house without reporting the incident for he was not ready for unending legal battles. The police later on, arrested the Appellant with the phone he had been given by the two ladies. The phone was still on, and had been on all through, because the Appellant had not suspected of anything ill that will ensue. Unfortunately, at arrest the phone was alleged to have been stolen from the complainant in this matter. (Whether the complainant is the prostitute the Appellant had encountered) The Appellant relied on the case of Mbugua Kariuki vs Republic (1979) KLR 14 C.A, the Court held that; “ No investigations were carried out in respect to the appellant's statement in defence “ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 6

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33. It was the Appellant's submissions that had the test-checking been done, it would actually have provided the trial Magistrate with plausible reasons for not rejecting the same. He cited Section 169 (1) of the Criminal Procedure Code which provides among others that in rejection of the defence, reasons for doing the same must be given. In the instant matter, no cogent reasons were given in dismissing the Appellant's defence other than the Court misconstruing the Appellant's narration on how he came into possession of the alleged stolen phone as an afterthought and an act of active imagination and as fiction. 34. That the Learned Trial Magistrate, failed to act as an impartial arbiter, erroneously and with bias sided with the prosecution by stating that there was no credible evidence that was adduced by the Appellant to contradict the testimonies of the prosecution witnesses. 35. The Appellant referred to the case of Suleiman Juma alias Tom vs Republic Criminal Appeal No.181 of 2002 at Mombasa, where the Court of Appeal warned that:“ Where the life of an individual is at stake, the prosecution must be extremely careful not to bring evidence that is less than watertight." 36. Also in Victor Mwenda Mulinge vs Republic (2014) Criminal Appeal No.357of 2012, the Honourable Court of Appeal Judges in allowing the appeal held:“ ....... but even assuming that the Appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provision of Section 309 of the CPC, the Prosecution could have sought leave to adduce further evidence in reply to rebut the appellants defence" 37. The Appellant further cited the case of Ouma Vs Republic Criminal Appeal No. 91 of 1985 in support of the submission that by the time of evaluating the Prosecution's evidence, the Court must have in mind the accused persons defence and must certify itself that the Prosecution had by its evidence left no reasonable possibility of that defence being true. 38. The Appellant further submitted that this is a case of the hunter being the hunted. It is an incident similar to what happened to Joseph in the house of Potiphar, as recorded in the Bible (Genesis 39:7-40:23) whereby Joseph ended up being locked in prison for an offence that he clearly did not commit. 39. It therefore goes without saying that since the Appellant's defence was not investigated to disapprove or dislodge it, the same stood the test of time and still stands and rightly submit so and in the premises urge for a reprieve and reinstate the Appellant's defence and acquit him of the charges. 40. In response to this ground of appeal, the Respondent submitted that, the Appellant had submitted that it was erroneous for the trial court to infer that the Appellant did not conclusively challenge the prosecution's evidence in his defence otherwise conferring a burden on the Appellant illegally. The Appellant gave sworn evidence. He stated that on 2nd August 2021 he had differed with his wife and he went out in Mlolongo. he met a lady who he states was a prostitute and asked if they could go for a shot. She stated that one shot costs Kshs.200/=. He said that she took him to a room and when they got to a room, two other ladies came from under the bed and they searched and robbed him. They threw him outside and when he screamed, he went back inside and the two ladies told him the one who took his money had run away and they gave him her phone. He also left his number and went back home. On 18/9/2021, 3 police officers came to his house and found the phone and in inquiring how he got it, they also beat him. The Appellant testified that the next day the parade was done. They were called https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 7

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from the cells and they refused to call his people. It was a parade of 6 people. He admitted that the complainant's phone was found with him but it was the ladies who robbed him. He stated that it was at night when the ladies robbed him and he could not identify if the complainant was one of the ladies. The Appellant denied the alleged events of the offence. This defence was an afterthought and was not strong enough to rebut the prosecution evidence as against the Appellant. It was the Respondent’s submission that the trial court was right in rejecting the same. Issue 4: Whether the prosecution proved its case beyond reasonable doubt 41. The Appellant submitted that the ingredients for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code were not proved by the prosecution beyond reasonable doubt. 42. He relied on the Court of Appeal decision in Hamisi Bakari & Another Versus Republic [1987] eKLR where it was held that: “ We would note that where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.” 43. The Appellant submitted that failure to establish the key ingredients of the offence makes his conviction unjust and not safe. He again relied on the case of Johana Ndungu Versus Republic, Criminal Appeal No. 116 Of 1995, where the ingredients for the charge of robbery with violence were stated to be: (i) If the offender is armed with any dangerous or offensive weapon or instrument; or (ii) If he is in company with one or more other person or persons; or (iii) if, at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or used any other violence to any person. The Appellant contested that, in the instant matter and as submitted in the other issues above, the prosecution did not prove beyond reasonable doubt any of the ingredients of the offence of robbery with violence and therefore this Honourable Court should be persuaded to make a finding that the Appellant's conviction was unjustified, unsafe and therefore should not stand. 44. On this issue, the Respondent submitted that it was in agreement with the Appellant’s submission as was stated in Hamisi Bakari Another vs Republic [1987/ eKLR which held that: “ ...we would note that where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge reflected in the particulars of the offence and is properly proved... 45. The Respondent submitted that in evaluating the evidence vis-a '-vis the law the ingredients of the offence were proved beyond reasonable doubt. 46. The Respondent referred to the provisions of Section 295 of the Penal Code defines robbery as: “ any person who steals anything and at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 8

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obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of the felony termed robbery " Section 296 (2) provides that: "If the offender is armed with any dangerous or offensive 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, strikes or uses any other personal violence to any person he shall be sentenced to death”. 47. The Respondent referred to the case of Jeremiah Oloo Odira V Republic [2018] eKLR Criminal Appeal No. 7 OF 2018 (Consolidated with High Court Criminal Petition No. 16 Of 2018) where A.C Mrima J stated that: “ From the foregone legal provisions, it can be seen that the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the violence”. 48. Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence. 49. Thus, to prove an offence of robbery with violence one has to prove robbery and violence and thus prove: a. theft b. use of or threat to use actual violence c. identity of the perpetrator 50. On theft, the Respondent submitted that PW1 testified that on 10/9/2021 she was called by a person named James that there was a job opportunity at Athi River. 51. On 11th she called the man at around 4:00 pm and they agreed to meet at 6:00 pm. They met and as they walked, he told her that the company was closed. They walked for a while on a strange road. PW1 stated that she started getting scared and he then held her by the neck, tripped her so she fell down and sat on her. He then strangled her. They fought and they fell down and he pulled the bag she was with and run away with it. Her bag contained her ID, NHIF Card, NSSF Card and Kshs. 2000/ =. The complainant, PW1 testified that the person who robbed her was the Appellant. She was later informed that the police had found someone with her phone. PW1 also testified that an ID Parade was undertaken and she was able to identify the Appellant by touching his hand out of the six (6) men who were brought. In cross examination she confirmed that it was dark but not yet that dark and along the road they walked there were security lights. 52. PW3 testified that one Cpl Seet was searching for the Appellant for other offences and he was tracked using his phone. The Appellant was arrested at his house and upon search of the house, they found several phone and one belonged to the complainant. PW4 confirms he traced the Appellant at his house using his phone number and arrested him. He also confirms conducting the search and finding the phones at the house including the Appellant's phone. The evidence on theft has been tendered as Appellant took the bag of the complainant and run away and was later found in possession of the stolen phone. The evidence is therefore solid. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 9

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53. On the use of violence, the Respondent submitted that the complainant said that the Appellant held her by the neck, tripped her so she fell down and sat on her. He then strangled her. They fought and they fell down and he pulled the bag she had and run away with it. PW2 confirmed he examined the complainant PW I on the 11/9/2021 he saw she was swollen on the left lower side periorbital area and she had pain on her neck and a lacerated wound on her head. 54. Further on examination the left head was tender, swelling on the lower side of the forehead. 55. He produced the treatment notes and P3 form as PExt. 2 and PExt. 3 respectively. PW3 testified that when she saw the complainant she saw injuries on the neck and on the left eye. This is a sign of some physical struggle between the complainant and the Appellant. Section 296 (2) of the Penal Code states that "the offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person." 56. The Appellant used personal violence as against the complainant. The evidence on violence is therefore solid. 57. On identification of the Appellant as the perpetrator, the Respondent submitted that the complainant, PWI indicated that her assailant was well known to her, the Appellant. An ID Parade was conducted and she was able to identify him out of the other five (5) men by touching his hand. PW3 was present when the complainant identified the Appellant in the ID Parade as the assailant who attacked and robbed her. PW5 is the inspector who conducted the ID Parade. He stated that the complainant was able to identify the Appellant by touching him. 58. In light of the foregoing, it was the Respondent’s submission that it discharged its burden of proof and that the Appellant was properly convicted of the offence of robbery (although the Respondent erroneously stated the offence of defilement). That the evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. All ingredients of the offence were established beyond reasonable doubt. The Respondent therefore urge this Honourable court to uphold the conviction. Evidence 59. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. (See Okeno v Republic (1972) EA 32). See also Gabriel Kamau Njoroge v Republic (1987) eKLR. 60. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent. However, this Court will not reproduce that evidence. Instead, it will incorporate the evidence as captured by the trial court in its judgment by reference since the Court did it quite well. 61. In a nutshell, I have perused the proceedings and the prosecution availed 5 witnesses in proving its case. In summary PW1 Pauline Syombua Kingoo testified that she was called by a man who identified himself as James and informed her that he knew of a job opening. They agreed to meet the next day at 6.00 PM at Vanillas. She called the man who asked her to wait at Vanilla's stage. The man came carried in a motorbike but was wearing a facemask. She asked the man to remove the mask but he refused. They then started walking as she was promised the company was close by. They walked for some time in a strange road and she got scared and informed the man that she wished to go back. The man attacked her by the neck tripping her, she fell down and they struggled and managed to throw the man down. However, he remained with her bag her NHIF, NSSF, Identity card, Ksh.2000, a Phone make Infinix, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 10

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she met a man on the way and she requested to be taken to the police station since she was bleeding. She went for treatment at Athi River health centre and was told to await investigations. A week later she was called by her sister who informed her that the police had called to ask for her. She went to the station when she was told that the phone was recovered, she was able to identify the phone and the man who robbed her among six other people. She also identified the accused person in court as the person who robbed her. In cross-examination, she testified that she was injured on the neck and forehead. It was the first time she met the accused person but since she worked as a hawker, her number could be known since she is paid through Mpesa. She testified that she could not take the receipt but she went back to her house and brought box she purchased the phone for identification. She also testified that if the police abstract in Mlolongo showed that she lost the ID at Mlolongo it was an error since it was stolen with her bag. She also testified that it was at night but not yet dark as they walked with the accused person. 62. PW2 Stephen Kioko Kile the clinical officer, he testified that he treated PW1 on the 11th September 2021 and that the complainant had indicated that she was assaulted by a known person. On examination he established that she was swollen on the left lower side periorbital area, she had lacerated wound on left periorbital region laterally. He produced the police abstract as evidence in court. In cross exam, he testified that he didn't see injuries on the neck and since the complainant was seen the same day the injuries he would have seen the wounds. 63. PW3 No.24xxx CPL Emily Mbaire and the investigation officer testified on how the case was allocated to her. She also reiterated the complainant testimony and also added that the assailant saw the phone in the complainant bag as she was confirming her ID, she also testified that the assailant had attempted to rape PW1. The Appellant was being sought by CPL Seet on other reported rape cases and when he was arrested in CPL Seet cases many phones were recovered in his house. Among the phones recovered was open and working. They called a number in the phone and on reaching PW1 sister, they asked her to inform PW1 to bring ownership documents to the station. The complainant didn't have a receipt but she brought a charger and the phone box. The next day identification parade was conducted and she identified the Appellant positively. She produced the Identification parade forms, police abstract, phone infinix make and phone box as exhibits in court. In cross-examination testified that she saw injuries on the victim neck and lower eyes. She explained that the OB number on the abstract is an error since it was stamped on the 20th September 2021 and on the boy of the abstract, it indicated that the identity card was lost on the 11th September 2021. 64. PW4 CPL Caroline Seet who was the arresting officer in the case. She testified that on the 18th September 2021 she was informed that there was a rape case reported at the station and that the victim was lured with promise of being taken to a job. She checked the number and noted it was the same number that she had investigated in other cases. She went with two other officers to the location she had tracked the owner of the phone and on entering the accused person house, they found him with his wife and a child. They asked for his identity card and on comparing the same with the data she confirmed that it was the person they were looking for. On top a mosquito net they retrieved six phones including the phone belonging to the victim who had reported on the 18th of September 2021.They took all the phones to the station, among the phones she collected she found one that was unlocked, she went to WhatsApp and contacted a contact who identified herself as sister to the victim herein and she requested the complainant to come to the station. On the 19th when she came and gave her the OB number, she noted that it was a case handled by PW3. She handed over the phone to the investigation officer. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 11

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PW5 Inspector Kasimba. He conducted the identification parade; he testified that it was a Sunday and that the investigation officer raised 5 people including the Appellant and that the victim was able to identify him. Defece Case 65. The Appellant testified that in august 2021 he had worked at Mlolongo after work as he was going home, he was called by a prostitute who agreed to engage him on Kshs.200/- terms. They entered a room with her and when they got to bed he was told to remove his trouser, suddenly two other ladies emerged from under the bed and accused him of attempting to rape their sister. They also asked how much he had and he responded that he had Kshs.15,070/=. They took Kshs.15,000/=and left Ksh.70/ =and his phone and threw him out. When he got outside, he screamed one of the ladies came out and asked him to go inside the house where he found two ladies only, he was informed that she had run away, he was given a phone belonging to the one who run away as he was promised that he will be called after they took his number. Later, police officers arrested him after they found the phone in his house. He does not dispute the fact that the phone was found in his house and he cannot tell if the complainant was among the ladies who accosted him. He explained during cross exam that he was to hold on to the phone as security as he awaits the women to contact him after the one who took his money comes back. Analysis & Determination 66. In this appeal, the issue for determination is whether the prosecution established the charge of robbery with violence contrary to Section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt. 67. This court has re-evaluated the evidence adduced before the trial court. It has also considered the rival submissions made by the parties to this appeal. It was evident from the facts that the prosecution relied on the evidence of identification and the application of the doctrine of recent possession to secure the conviction of the Appellant. PW1 was the only identifying witness. It was her testimony that she identified the Appellant in an identification parade conducted by PW5. PW1 stated that the robbery took place as about 7.00pm and the assailant was masked. 68. The Appellant was arrested eight days after the robbery. That is on 18/9/2021. An identification parade was conducted by PW5. PW1 testified that she was able to identify the Appellant from the parade by touching him. 69. This court is struggling to understand how the PW1 identified the Appellant if the assailant was masked at the time of the alleged robbery, how then was PW1 able to identify him without him unmasking even assuming she knew the Appellant, what description did she give in her initial report that she made to the police? Xxxx 70. In this case, the incident allegedly occurred at night (7.00 pm) and without proper lighting, which circumstances make identification difficult. There was no description of the intensity of the lighting by which PW1 saw and recognized the Appellant. There was claim that PW1 heard the robber speak but the identification herein was not based on voice. 71. The assailant was masked and PW1 was not in a position to have a good look at the assailant’s face even also assuming that it was in broad day light. PW1 did not state whether at any point the Appellant unmasked and she was able to see him. PW1 did not give any detailed description of her assailant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 12

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72. 73. Further, the Appellant in his submissions raised an issue of the manner in which the identification was conducted. The Appellant contended that since there were only 6 people as the prescribed 8 the parade and that the complainant identified the Appellant by touching and she did not indicate that she would identify in her first report that she would identify by touching. Chapter 42 paragraph 7 (5) (d) & (e) of the National Police Service Standing Orders provides: “ (d) the accused or suspected person shall be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as him or her; (e) Where the accused or suspected person is suffering from any disfigurement, steps shall be taken to ensure that it is not especially apparent;” For the evidence of identification to have some probative value, the identification parade must comply with the laid down procedure. The Court of Appeal in David Mwita Wanja & 2 others v Republic [2007] eKLR emphasized the importance of a properly conducted identification parade and expressed itself as follows: “ The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. 74. From the above evidence it appears undoubtedly clear that the Appellant was not properly identified through the parade. 75. The Court of Appeal in John Mwangi Kamau v Republic KLR stated as follows concerning identification parades: “ The identification parades are meant to test the correctness of a witness’ identification of a suspect. See this court’s decision in John Kamau Wametu v Republic CRA 68 & 69/2008. In this case, Eliud, George and Joseph testified that they had indicated in their initial reports that they had gotten impressions of the assailants and they could identify them. However, we cannot help but note that PW1, Cpl John Makumi in producing the Occurrence Book, testified that the incident was recorded as O.B. No.45 of 24/6/2003; the assailants were never described in the said report. We also note that the aforementioned witnesses did admit that they never gave the physical description of their assailants to the police. In Gabriel K Njoroge v Republic (1982 – 1988) I KAR 1134 this court observed: “A dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.” 76. No doubt then, from the foregoing, a witness ideally ought to give the description of the assailant for purposes of the police mounting an identification parade. In this case, there is no evidence that either PW1 gave the description of the robber to the police. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 13

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77. In the instant case no description of the assailant was apparently not recorded in the first report and neither was such a report produced in evidence. 78. This raises doubt whether indeed PW1 positively identified her assailant on the day of the robbery. This court therefore is of the opinion that PW1 did not positively identify her assailant during the robbery and holds that the evidence of identification was not watertight as to exclude the possibility of mistaken identity or error. 79. Does the failure of the identification parade vitiate the other evidence concerning the offence? 80. In the present appeal, the prosecution adduced other evidence other that the evidence of identification. The prosecutions case was that the Appellant was arrested in possession of the mobile phone that was stolen from the complainant. Before a court can convict on the application of the doctrine of recent possession, certain facts must be established to the required standard oof proof beyond any reasonable doubt. See Malingi v Republic (1989) KLR 225 where Bosire J held thus: “ By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no coexisting circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver." "By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been solen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no coexisting circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver." 81. The prosecution is required to establish, firstly, that the property was stolen from the complainant, secondly, that the property was found in the Appellants exclusive possession, thirdly, that the property was positively identified as the property of the complainant and finally, that the recovery of the stolen item was within the proximate time of the robbery. As to what constitutes proximate or recent, depends on the nature of the stolen item. 82. In the present appeal, the Appellant was arrested eight days after the robbery incident. The arresting officer, PW2, told the court that she arrested the Appellant on 18th September 20214, while in possession of the mobile phone alleged to have been stolen from PW1. This was approximately one month after the robbery. PW4 further stated that she was in the process of investigating another case when she was called by the report office that a case of rape was reported and the victim had given her number since the was to take her to get a job. She noticed it was the same number. She went to the police and DCI Officer to trace the number. He located and found that he was at site in Athi River https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 14

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as she had initially established the owner of the cell phone. She called PC Santa and PC Murathe to the house. She had the details and she found the Appellant in the house with his wife and kids. She asked of his Identity Card in the name of Walter. She compared with data and found he was the one. She searched the house, there was a net on top she found 6 phones that the Appellant could not tell the owners. She found the phone of the victim that was raped that day. She took the Appellant with the phones to the police. Infinix Smart 5 was not switched off. She went to the WhatsApp to check the owner. She called the person saved as sister and she stated that the sister called Syombua was at Mlolongo and had informed her that she was almost raped and was robbed. She asked her to inform the sister to go to the station on 19th and she went with the box of the stolen phone. She gave her the OB Number reported and found it was OB No. 76/11/9/2021 at 7.51 PM. She perused the OB and found the matter was assigned to Emily Mbaire and gave her the recovered Exhibit to proceed. She confirmed to have arrested the Appellant whom she pointed at the dock. 83. The prosecution's case was therefore to the effect that the recovered mobile phone was with the Appellant, the phone was positively the property of the complainant; the phone was stolen from the complainant, and lastly the phone was recently stolen from the complainant. 84. This established that there were no other co-existing circumstances which pointed to another person having been in possession of the stolen mobile phone prior to possession being passed to the Appellant. During arrest, the Appellant was not able to give a reasonable explanation as to why he had the complainant's mobile phone that was reported stolen. 85. In the Appellant’s defence, he testified that he left work at 5.30p.m and passed through a hotel and ate and watched football until 10.30 p.m when he left for home. He walked for about 3 minutes in Mlolongo and he met a lady. It was night. They were in line. One called him and he responded and went there and she told him she is a prostitute and they could go for a shot. She said one shot was Kshs.200/=. They agreed and the lady took him to room 4. She opened the door and took him to the bed and told him to remover the trouser. Other 2 ladies got from under the bed and told him not to scream or he would see and they said he wanted to rape their sister. They asked how much he had and he answered Kshs.15,000/= and Kshs.70/= in the pocket. They searched him and took the money but left him with Kshs.70/= and his phone and they threw him out. He screamed outside but a lady came out and told him to go inside and pick his money. He entered and found 2 ladies. They said that the prostitute he was with had ran away. They gave him a phone saying it belonged to the one who took his money and that they would call him. He left his number and left to his house. On 18/9/2021 as normal he had gone to work and came back in the evening at about 10.30 p.m. 3 police officers came and knocked his door and they said they were on patrol. They found the phone on and asked how he got it and started beating him. They took him to the police station. The phone was the one he was given by the ladies. He agreed that the phone was found with him and it was the one produced as an exhibit before court by the prosecution. It was at night when the ladies stole from him and he could not identify if the complainant Pauline was one of the ladies. 86. This court observes that in as much as the Appellant alleged that he was given the phone by some ladies to hold as security until the lady who stole from him surfaced, there are strings attached to the whole narration. First, the Appellant testified that one of the ladies called him and he responded and went there and she told him she is a prostitute and they could go for a shot. One would ask, was the Appellant known to the lady that called him so that he responded, and if so then even after proceeding to the room, the Appellant must have by then seen or known the lady who called him unless he is not being truthful. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 15

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87. More surprising of the Appellant’s narration was the fact that the three ladies robbed him; they then threw him outside and later called him back and he willingly came back to the den of robbers where he was able to strike a deal with strange ladies. 88. Secondly, it does not add up that the Appellant’s hard earned Ksh. 15,000/= would be taken from him and he just decided to keep quite without reporting the same to the police including the horrible experience he underwent in the hands of the ladies (if at all it happened). The place he was allegedly taken to was known being in room 4. 89. The Appellant admitted that the police inquired about the phone but he did not say whether he narrated to them what had transpired. The Appellant could have requested the police to visit the place for investigations on the matter if in deed his story was true. 90. This court is of the opinion that the Appellant’s defence was an afterthought as was found by the trial court. 91. This court finds that the prosecution therefore established all the elements of the doctrine of recent possession as stated in the above case of Malingi -Vs- Republic (supra). 92. On the doctrine of recent possession, the recovery of the stated mobile phone took place only eight days after the robbery occurred. This period in the circumstances of this case, constitute a proximate time the robbery occurred taking into consideration the ease by which a mobile phone can exchange hands within a short period of time. The prosecution's case was to the effect that the mobile phone was recovered from the Appellant. 93. The prosecution established to the required standard of proof beyond any reasonable doubt that the ingredients enabling the application of the doctrine of recent possession. Disposition 94. Having analysed all the evidence tendered and all the grounds of appeal raised by the Appellant against his conviction this court finds that; a. The appeal as against conviction for robbery with violence is merited; however, this court finds that the prosecution proved the alternative charge of handling stolen goods contrary to Section 322 (2) of the Penal code to the required standard beyond reasonable doubt. I would therefore set aside the appellant’s conviction and quash the sentence for the offence of robbery with violence Contrary to Section 296(2) of the Penal Code and substitute it thereof with a conviction for the offence of handling stolen goods contrary to Section 322 (2) of the Penal code. In so finding, I am guided by the Court of Appeal decision in Mwangi Mungai v Republic [2006] eKLR “ The offence of robbery with violence under section 296(2) carries with it, upon conviction, a mandatory sentence of death. The offence under section 322(2) of the Penal Code carries with it, upon conviction, a maximum of 14 years imprisonment with hard labour. That being so, the offence under section 322(1) and 322(2) is clearly minor in relation to the one under section 296(2) of the Penal Code. Robbery is theft by use of force or threat to use force while handling stolen property involves dealing with the property after it has been stolen. Once again, the offence of handling stolen property, apart from being minor, is also of a cognate nature to the one of robbery with violence under section 296(2) of the Penal Code. That being the position, we allow the appellant’s appeal to the extent that we set aside the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 16

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conviction for robbery with violence under section 296(2) of the Penal Code and in place thereof, substitute it with a conviction for handling stolen property under section 322(2) of the Penal Code. We also set aside the sentence of death imposed upon the appellant and substitute therefor a sentence of fourteen (14) years imprisonment with hard labour to run from the 11th July, 1997 when the appellant was convicted and sentenced by the magistrate”. 95. Accordingly, the sentence of Twenty (20) years imprisonment for robbery with violence is set aside and the Appellant is sentenced to Five (5) years imprisonment for the offence of handling stolen property which sentence is to run from the date of conviction by the trial court less any period the Appellant was in custody awaiting trial pursuant to the provisions of Section 333(2) of the Penal Code. Date of arrest was 18/9/2021 to date of conviction on 20/9 2022 (12 months). To this extent only does this appeal succeed. Right of Appeal 14 days. It is so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 26TH FEBRUARY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 26TH FEBRUARY 2025 In the presence of: Appellant in person Ms Agatha for state Milly Grace- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14438/eng@2025-02-26 17

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