Jackson Khush v Republic

5. That there were glaring irregularities in the trial. 6. The appellant therefore prays that the conviction be quashed, sentence set aside and the case be remitted back to the lower court for retrial or he be set at liberty. 7. This being a first appeal, it behoves this court to exhaustively re-examine all the evidence that was tendered in the trial court, analyze and evaluate it, and arrive at its own conclusions. The court however, has to take into account the fact that it never heard or saw the witnesses testify. 8. This court draws guidance from the decision of Okeno v Republic (1972) EA 32. Prosecution case. 9. PW1 Peter Ayoti is the father of the Appellant who was accused 2 in the lower court. He testified that on 3/3/2023, morning, he was called by a police officer called Noor. The Officer approached PW1 with two forms and enquired how many phones and sim cards he had registered. PW1 confirmed to the officer that he had phone No. 0708-xxx his, and 0700-xxx for his son who was below eighteen (18) years. 10. PW1 confirmed that the son for whom he registered the phone was the appellant. 11. PW2 Truphena Chepkorir of of Kacheliba recalled 3/3/2023 when police called her and asked her to proceed to Kongelai Police Station. They asked for her identity number and her phone numbers which she gave as 0110- xxx; and 0768-xxx; that the second phone was being used by her nephew Eric Korir who was seventeen (17) years and that he used to return it to her when going to school. PW2 stated that her nephew had left the phone with Alexander Njoro (Accused 1) 12. PW3 Rose Chebor Chelangat, a trader at Makutano closed down her stall about 9.00p.m. on 25/2/2023 and went towards the market. She met four (4) youth who stopped her, one kicked her and she fell; one sat on her chest pinning her down while another hit her with a hammer on the knees and ankles. 13. They took her phone, demanded for her Mpesa pin which she gave them after they assaulted her. She had 15,000/= on her phone which had her mobile No. 0716-xxx. They took cash Kshs.1,800/=, overall and ID card, Post Bank Card. She managed to get to Makutano Police Station and reported the robbery. She was treated at Kapenguria Referral Hospital. She obtained her Mpesa statement and found that her money had been withdrawn. Kshs.5,000/= had been transferred to phone 0700-xxx belonging to Peter Ayoti PW1 and 10,000/= had been transferred to 0718xxx registered in the name of Truphena Chepkorir (PW2). PW1 described the assailants as one had Rasta (dreads), slim and a bit brown and one called out to “Njoro usimpige kichwa” 14. PW3 said she saw the appellant using security light which were bright and that he injured her with a hammer. 15. PW4 Sylveter Kibanda, a Clinical Officer at Kapenguria County Referral Hospital examined Rose Chelangat with a history of assault. He found that she had a swollen head on the front; pain on left shoulder, knees had bruises. He classified the injuries as harm. 16. PW5 Cpl. Ishar Abdille was the Investigating Officer in the case having taken over from Cpl. Noor. Who was then attending a course for six months. PW5 said that the complainant had been robbed of money and an ATM and the robbers withdrew her money Kshs.10,000/= through phone 0768-xxx on 26/2/2023 and owner of the phone was Trufena Chepkurui, while 5000/= was transferred to Peter Ayoti (PW1) via phone NO. 0700-xxx; that the Investigating Officer obtained a court order P.Exh.5 to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16192/eng@2025-11-05 2

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investigate the two phones; that the complainant named the 1st accused who was arrested and found with PW1’s ID card for Truphena Chepkorir, Rose Chebor post Bank ATM; that through Safaricom, the appellant was traced and found to have received Kshs.5,000/= through phone No. 0700xxx. 17. When called upon to defend himself, the appellant testified on oath as DW2. He recalled that on 25/2/2023 about 10.00p.m. he was asleep when the brother knocked on his door and told DW2 that he had sent money to his phone. He checked and confirmed that indeed he had received Kshs.5000/ = and he gave the phone to the brother, Timothy Ayoti; that the said Timothy returned the phone to him on the evening of the next day; that police came and arrested him and his phone taken. He was later taken to court. He said that he gave the brother his phone on 25/2/2023 and he returned it on 26/2/2023. 18. DW3 Domitilla Chelimo the appellant’s witness is his wife of DW2. She said that on 25/2/2023 while asleep when DW2’s brother Ayoti knocked on the door and asked if Kshs.5000/= had been sent to his phone by Mpesa; that he went away with the phone; that the said brother returned the phone on 26/2/2023. DW3 said that the appellant said the brother used to share the phone. Appellant’s submissions. 19. The appellant submitted that the offence having been committed at night, there was need for an identification parade to be mounted for purposes of identifying the perpetrators; that reliance on the money transaction to link the appellant to the offence was not sufficient to base a conviction upon. The other ground was that the court failed to take into account the Judicial Sentencing guidelines and handed him thirty (30) years imprisonment, which was harsh and excessive; that having been found to be a first offender and regretted the offence, he should have been given a more lenient sentence. Respondent’s Submissions: 20. The appeal was opposed by the Respondent who filed submissions. The prosecution Counsel identified two issues for determination being: 1. That the identity of the appellant was in doubt; 2. That the court failed to take into account the Judiciary Sentencing Guidelines. 21. Counsel submitted that the complainant was robbed of a mobile phone, ID card, Post Bank ATM and the robbers forced her to give them her Mpesa Pin, and later she found monies had been transferred from her phone. Investigations tracked down PW1 Peter Ayoti, the father of the appellant who was the registered owner of Phone No. 0700-xxx. PW1 confirmed that the phone belonged to the appellant and that 5,000/= had been transferred to the appellants phone from the complainant’s phone; that besides the complainant claimed to have identified the appellant as one of the people who attacked her and that he hit her with a hammer; Counsel submitted that the identity of the appellant was proved by both direct and circumstantial evidence which placed the appellant at the scene. 22. As regards the sentence of thirty (30) years, Counsel submitted that under Section 296(2) of the Penal Code, thirty (30) years imprisonment is illegal and that is why Counsel issued a notice of enhancement should the appeal fail to succeed. Counsel relied on Samuel Ashibabi v Republic CRA. 251/2019 where the Court of Appeal (Kisumu) upheld the constitutionality of the death sentence in Robbery with violence cases. Counsel urged that the court give a lawful sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16192/eng@2025-11-05 3

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Determination: 23. I have now considered the grounds of appeal, the evidence tendered before the trial court and submissions of the parties. The appellant was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. 24. To prove a charge of Robbery with Violence, the Prosecution has to prove the existence of the following ingredients; 1. If the offender was armed with any dangerous or offensive weapon or instrument; or 2. If he was in company with one or other person or persons; or 3. 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 Oluoch v Republic. 25. In Dima Denge Dima & others v Republic (2013) KECA 480 (KLR) the Court of Appeal held that, “the elements of the offence under section 296 (2) are, however 3 in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction”. 26. In this case, the complainant said that she was attacked by four (4) youth. She was assaulted and injured using a hammer which is a dangerous weapon, and her property was stolen. All the three elements to prove an offence of robbery with violence exist. Only one element was necessary. 27. The next question was therefore whether the appellant was one of the robbers. 28. No doubt the offence happened at night, about 9.00p.m. PW3 said that there were street lights where she was attacked and was able to see the assailants. However, the court was not told how far the light given the scene, whether PW1 knew the assailants before or how long she had the assailant under observation. Identification of an assailant under unfavourable circumstances can lead to errors in identification. In Wamunga v Republic the Court of Appeal said. “If a case depends entirely on evidence of identification the court must warn itself of the dangers of such evidence because of the possible errors that can be made and lead to injustice.” In such circumstances, there would be need for an identification parade to test the witness correctness in identification. No identification parade was done. 29. In this case however, the case also turned on circumstantial evidence. In Abang’a alias Onyango CRAPP 32/1990, the court set out the conditions that must exist before circumstantial evidence can form a basis of a conviction as follows It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; (iii) the circumstances taken cumulatively, should from 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." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16192/eng@2025-11-05 4

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31. In R.v. Taylor, Weaver & Donovan (1928) CR. App. R.21 the court said "It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is way often the best. It is evidence of surrounding circumstance which, by undesigned coincidence is capable of proving a proposition with the accuracy of nature tactics. It is no derogation from evidence to say that is circumstantial”. 32. In this case, PW3’s phone, Post Bank ATM were stolen from her. She was forced to give her pin number to the robbers. The robbery took place on the evening of 25/2/2023. PW3 obtained her Mpesa statement and Kshs.5000/= had been withdrawn from her account to phone No. 0700-xxx registered in the name of Peter Ayoti PW1. PW1 was traced and confirmed that the phone was indeed registered in his name and that it was his son, the appellant, who was using the said phone. The appellant admitted to having had the phone though he lays blame on his brother. The Investigating Officer also carried out investigations through Safaricom and it was confirmed that the phone that the appellant had 0700xxx is where the complainant’s 5000/= had been transferred to. The circumstantial evidence unerringly pointed to the appellant as one of the robbers and placed him at the scene of crime. I find that the trial court correctly found that the circumstantial evidence pointed to the appellant as one of the robbers. The appellant’s explanation in his defence was not convincing and lacked substance and was dismissed as such. 33. I agree with the trial court that the Prosecution proved its case against the Appellant beyond reasonable doubt and the conviction is sound and I affirm it.. Whether the sentence is excessive: 34. Under section 296(2) of the Penal Code, upon conviction, one is liable to suffer death. The confusion that was brought about by the decision of Francis Karioko Muruatetu & others v Republic Pet. 15 & 16 of 2015. When the Supreme Court declared the mandatory death sentence under section 204 of the Penal Code, to be unconstitutional in Murder cases was clarified. The Supreme Court clarified it’s decision in the directions given in Muruatetu 2. In 2021, where the Supreme Court clearly stated that “the Supreme Court’s decision did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statutes. The decision was not an authority for stating that all provisions of the law prescribing mandatory or minimum sentences were inconsistent with the Constitution”. 35. In Joseph Njuguna Mwaura & 2 others v Republic (2013) eKLR. The Court of Appeal upheld the mandatory death sentence where the appellant had been charged with the offence of robbery with violence. The court said “clearly the Constitution envisages a situation in which the right to life can be curtailed, a fact recognized by the Court in Godfrey Ngotho Mutiso v Republic (2010) eKLR (CRA.17/2008). The situations in which a person’s right to life may be curtailed are contained in the following sections of the Penal Code: Section 24 which provides that the punishments which may be infiicted by a court include death sentence, section 25(1) which provides that “where any person is sentenced to death, the form of sentence shall be to the effect only that he is to suffer death in the manner authorized by law”. As we have stated before, the sentence of death as imposed on those found guilty of the following offences: administering oath to commit a capital offence; murder, treason, robbery with violence and attempted robbery with violence. These offences are provided for in the Penal Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16192/eng@2025-11-05 5

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Since the Constitution, both in the former approach and the current, clearly envisages that the right to life is not absolute, the State can limit it in accordance with any written law. The law in this case is the Penal Code. Indeed, some of the international instruments envisage a situation where the right to life may be curtailed in furtherance of a sentence imposed by a court of law.” 36. In Joseph Kaberia Kalinga & others v Republic the court said “The death sentence in Kenya as a penalty for offences prescribed in the Penal Code as stated above, i.e Murder, Robbery with violence case, treason) is not unconstitutional. It was contemplated in the Constitution in that the same envisaged a situation where the right to life provided under Article 26(3) of the Constitution could be curtailed by written law. 37. In Samuel Ashibabi v Republic CRA 251/2019 the Court of Appeal Kisumu, upheld the Constitutionality of the death sentence in a Robbery with violence case. Sentencing is an exercise of the court’s discretion guided by the Constitution, the relevant laws and the Judiciary Guidelines on Sentencing. 38. The Supreme Court in Francis Karioko Muruatetu v Republic 2017 eKLR emphasized that fact when it stated thus (72) 39. 40. we wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process”. The Judiciary Sentencing Guidelines page 15 paragraph 4: provides as follows: i. Retribution: to punish the offender for his/her criminal conduct in a just manner; ii. Deterrence; to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences; iii. Rehabilitation; to enable the offender reform from his/her criminal disposition and become a law-abiding person; iv. Restorative justice; to address the needs arising from the criminal conduct such as loss and damages; v. Community Protection; to police the community by incapacitating the offender. vi. Denunciation; to communicate the community’s condemnation of the criminal conduct. vii. Reconciliation; to mend the relationship between the offender the victim and the community viii. Reintegration; To facilitate the re-entry of the offender into the society. In sentencing, the court also considers various mitigating factors that were referred to the Muruatetu case and are as follows; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16192/eng@2025-11-05 6

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41. (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) possibility of reform and social re-adaptation of the offender; and (h) any other factor that the Court considers relevant In this case, after conviction, the Prosecutor stated that he did not have the appellant’s records. A presentence report was called for. During sentencing, the Court considered the seriousness of the offence, its impact on society, and that the appellant was a first offender. The court then handed the appellant thirty (30) years imprisonment. Under section 292 (2) of the Penal Code, the only sentence provided is that of death I have earlier considered the decision of the Supreme Court and Court of Appeal. The law relating to mandatory sentences has never been amended including section 296 (2) of the Penal Code. The appellant was notified by the Prosecution that the Prosecution would be requesting the Court to enhance the sentence. The sentence imposed on the appellant by the lower court is illegal and is hereby set aside. I substitute it with the only sentence under section 296(2) of the Penal Code which is that he will suffer death as provided by the Law. The appeal is dismissed. JUDGMENT DELIVERED, DATED AND SIGNED AT KAPENGURIA THIS 5TH DAY OF NOVEMBER, 2025 R. WENDOH JUDGE Judgment delivered in the presence of:Mr. Majale for Respondent/ Prosecution Counsel Appellant – present(virtually) Juma/Hellen – Court Assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16192/eng@2025-11-05 7

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