1st & 1 other v Republic

with the prosecution calling nine witnesses and the Appellants tendering their sworn evidence. Following the conclusion of the hearing the Appellants were convicted and subsequently sentenced to death. 4. Aggrieved by the convictions and sentences of death, the Appellants lodged the present appeal vide the petition of appeal dated 30th August 2024, contending that the learned magistrate erred in law and fact by: 1. Convicting the Appellants when the prosecution did not establish a case against them to the required standard; 2. Convicting theAppellants without a scintilla of supported by identification evidence against them; 3. Reaching conclusions on facts not evidence; and, 4. Failing to consider the Appellants’ evidence in defence which outweighed the prosecution’s evidence in support of the charge. 5. On the strength of these grounds, they urged this court to allow the appeal, quash their convictions and acquit them and set aside their respective sentences. 6. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see 2|Page

page 2 of 25

Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.) 7. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decision in respect of both the convictions and sentences. This exercise entails a close scrutiny of each witness’s evidence within the context of the totality of evidence and what the trial court’s findings were in relation to such evidence (see Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 377 (KLR) (17 December 2021) (Judgment). 8. Testifying as PW1, Diana Atieno (hereinafter referred to as “the complainant”) narrated that on 19th May 2022 after leaving her place of work at around 7.30pm and before boarding a bodaboda, her neighbour one Janet called her and sought to know if her Mpesa float had reached Ksh.20,000/-. Janet then sent a customer to her, who also enquired from the complainant whether her Mpesa float could reach Ksh.50,000/-. 9. PW1 stated that she thereafter deposited Ksh.25,000/- for the customer and got a confirmation message. She identified the Mpesa statement and the phone that she used to make the deposit. 3|Page

page 3 of 25

10. The complainant explained that after depositing the cash, she noted from the return confirmation message that the recipient was one Maurice Owiti. She then left for her home. 11. PW1 explained to the trial court that while she was on a bodaboda as a pillion passenger on her way to her house, another motorcycle overtook them. She proceeded with her journey and or arrival, while alighting near her home at about 8.00pm, she saw her father and his friend in front of her. The two branched into a shop and the complainant continued walking towards her home. On reaching a nearby corner, a bright spot light was shone on her eyes, temporarily blinding her. At that moment, she quickly whipped out her phone and put on her phone torch, which enabled her to see the man who had the torch, whom she described as a short man. 12. In panic, the complainant attempted to hurriedly leave the area but the man pulled out a panga and cut her on the arm. She screamed out for help and at that instance, two other men emerged with one of them, whom she described as being slim, covering her mouth. 13. In the ensuing melee, the complainant’s responded and as he was rushing to her aid, the men snatched her bag that contained approximately Ksh.100,000/- as well as Telkom 4|Page

page 4 of 25

and Safaricom airtime cards worth Ksh.4,000/- and disappeared into the night. 14. The Complainant’s further testimony was that she called a bodaboda rider one Evans who took her to Nyabondo hospital for treatment. She then reported the matter to the police and subsequently was issued completed with a at P3 form, Sondu which was Dispensary. The complainant identified the P3 form and the treatment notes from the said facility before the trial court. 15. The complainant told the trial court that on returning home from the hospital later that night, she found that some motorcycles had been burnt. She explained that she later made a follow up on the matter at Ogoro Police Station, where she was informed that suspects were in custody at the station. found suspects there. The witness told the trial court that she had never met the suspects. She did not know the circumstances under which the suspects in police custody were arrested. 16. On cross-examination by the 1st Appellant, the complainant maintained that the recipient of the money that she deposited was one Maurice Owiti. She asserted that she had never seen or met the 1 st Appellant before his arrest. 17. Upon being cross-examined by learned Counsel for the 2 nd Appellant, the complainant reiterated that she did not see 5|Page

page 5 of 25

her attackers. She further stated that she was not invited to participate in an identification parade for the two Appellants. 18. The second prosecution witness was Evans Odero Odhiambo (PW2) a bodaboda operator. The witness testified and told the trial court that on the fateful day at around 7.30pm the complainant, who was his regular customer called him and asked him to ferry her to her home. 19. The witness explained that it had rained heavily and parts of the road to the complainant’s home were impassable and that as a result, the complainant alighted at a distance from her house, and PW2 then left. 20. It was PW2’s further testimony that the complainant called him about 30 minutes later and informed him that she had been attacked and robbed and needed to be taken to the hospital immediately. PW2 explained that he rushed back to the scene and took the complainant to the hospital. 21. In his further testimony, PW2 told the trial court that while he was on his way back, he encountered an irate mob that was burning motorcycles. The mob stopped him but the complainant’s parents intervened and vouched for him and he was not harmed. 22. The witness stated that he was summoned to Ogoro Police Station the next day, where he recorded his 6|Page

page 6 of 25

statement. He stated that the Appellants were not known to him. 23. On cross-examination by the 1st Appellant, the witness told the trial court that he did not see the 1st Appellant on the fateful evening. 24. Upon being cross-examined by the 2 nd Appellant’s Counsel, the witness told the trial court that while he was on his way to take the complainant to her home, a motorcycle with three people on board overtook them but he neither saw its number plate, nor did he identify the people on board. He stated that he was not called by the police to identify any suspect. He maintained that he did not know the men who attacked the complainant. 25. The prosecution called Habbakuk Masawa as PW3. The witness told the trial court that on 19 th May, 2022 at about 8.30pm, he was walking towards his home in the company of the complainant’s father. 26. PW3 told the trial court that on nearing his home, the complainant’s father branched into a nearby shop. At that instance, the witness heard screams and when he looked back, he saw that it was the complainant screaming. He told the trial court that he rushed to the complainant’s aid and saw three people hurriedly leaving the area and he pursued them. 7|Page

page 7 of 25

27. The witness told the court that after a short pursuit, the complainant’s father called him and informed him that the complainant had been injured. He abandoned the pursuit at that point, went back to the scene and accompanied PW1 to hospital. 28. The witness told the trial court that he later learnt that some motorcycles and a panga had been found near the scene. He proceeded to the scene where he saw motorcycles that had been burnt. He also saw a panga with a burnt handle. He maintained that he knew neither the owners of the motorcycles nor the attackers. 29. Upon cross-examination by the 1st Appellant, PW3 told the trial court that it was dark when the complainant was attacked. He stated that in as much as he saw three suspects running away, he was not able to identify them. 30. PW4 was David Ochieng Rapando the complainant’s father. The witness testified and told the trial court that on the night of the incident, he was in the company of PW3. He stated that he branched off to make purchases at a nearby shop and shortly thereafter heard screams. PW3 then informed him that it was his daughter – the complainant – who was screaming. 31. PW4 explained to the trial court that together with PW3, he rushed in the direction of the screams and found the complainant who had sustained a panga cut on the arm. He 8|Page

page 8 of 25

then attended to the complainant and organized for her transportation to the hospital. 32. In his further testimony, the witness told the trial court that on returning from the hospital, he found that two motorcycles had been burnt by members of the public near the scene of the robbery. He explained that he heard rumours that the 2nd Appellant had been involved in the attack. He however was emphatic that he did not know the attackers. 33. On cross-examination by the 1st Appellant, the witness stated that he did not know the 1 st Appellant and had previously never met him. 34. The fifth witness was Eli Okello Osire (PW5), whose testimony was that he had purchased a motorcycle registration number KMFW 606U on hire purchase terms from Water Credit and handed it over to the 1 st Appellant to run a bodaboda business. The witness stated that as per the agreement with the 1st Appellant, the latter would pay Ksh.400/- daily. 35. The witness told the trial court that on 20 th May 2022 at about 9.00am, a number of people on motorcycles went to his his house with his motorcycle’s number plate and informed him that it had been burnt at Kobongo area. On arrival at Kobongo, PW5 identified his motorcycle that had been destroyed by fire. He explained to those present that 9|Page

page 9 of 25

he had given it to the 1st Appellant and led them to his house. 36. PW5 explained that the group found the 1 st Appellant at his house and that the 1 st Appellant denied knowledge of the attack upon the complainant. PW5 added that the 1st Appellant claimed that he had given the motorcycle to the 2nd Appellant who was also sought and found. The two Appellants were then apprehended and placed in police custody. PW5 identified the two burnt motorcycles and the panga. 37. The prosecution called Ochieng Benard, the complainant’s brother as PW6. The witness narrated to the trial court the events of 19th May, 2022 and stated that on that day at about 8.30pm, he heard screams and left his house to find out what the matter was. He found his sister injured on the hand and saw two people running away, through his neighbour’s maize plantation. 38. PW6’s further testimony was that a search for the complainant’s attackers was mounted by the neighbours in the surrounding area and that a panga was recovered about 30 to 40 meters from the scene of the incident. The witness further explained to the trial court that two motorcycles were also found parked next to a nearby fence. The irate mob then set ablaze the two motor cycles, whose shells the witness identified before the trial court. The witness also 10 | P a g e

page 10 of 25

identified the panga that was recovered at the scene. He stated that he did not know the complainant’s attackers. 39. Upon being cross-examined, the witness told the trial court that he did not see any blood stains on the panga. 40. The seventh prosecution witness was Inspector of Police Samson Barchoka from Ogoro Police Station. The witness testified and told the trial court that the complainant reported the attack on 20th May 2022 at 9.00am. He, in the company of Corporal Rotich proceeded to the scene and found two shells of burnt motorcycles. There was a panga on the side of one shell. The officers took possession of the exhibits and took them to Pap-Onditi Police Station. 41. PW7 explained to the trial date that on a date that he did not state, he was informed that there were two men enquiring about the two motorcycle shells. He then went to Kodunga police station and picked the two men – the two Appellants. 42. On being cross-examined the officer was unable to tell which of the two shells had a panga next to it, as he was not the investigating officer. 43. In his testimony before the trial court, PW8 Lucas Odero, a Clinician at Sondu Subcounty Hospital stated that the complainant presented herself to the hospital with a history of having been assaulted at Nyabondo area. The 11 | P a g e

page 11 of 25

complainant had sustained a cut on her right upper arm and had bruises on her shoulders. He examined the complainant and completed her P3 form, classifying the injuries as harm. The witness produced the P3 form and the treatment notes as PExh3 and PExh4. 44. On cross-examination the witness stated that he was not the initial treating doctor. He stated that he did not consult the doctor who had initially treated the complainant at Nyabondo Mission Hospital. 45. The investigating officer, Corporal Josiah Rotich testified as PW9. It was his testimony that on 20th May 2022, he was called by PW7 over a robbery that had occurred the previous evening/night at Kabongo village. He proceeded to Ogoro Police Station where the matter had been reported, where he met PW7, who was accompanied by the complainant and other witnesses. 46. PW9 told the trial court that at the station, he interviewed the complainant who narrated to him the details of the attack. PW9 stated that he was informed by PW7 that the latter had been informed that that one of the owners of the burnt motorcycles had gone to Kodonga Police Station to seek refuge from irate members of the public. The officer rushed to the said station where he found the 1st and 2nd Appellants in custody, and promptly transferred them to Pap Onditi Police Station to secure them from the irate crowd. 12 | P a g e

page 12 of 25

He testified that in the course of his investigations he learnt that one of the motorcycles belonged to PW5. 47. The officer told the trial court that prior to the attack, he was informed that one by the name Maurice Odhiambo Owiti had deposited the Ksh.25,000/= at the complainant’s Mpesa outlet. The officer was emphatic that the person who made the deposit was Maurice Odhiambo Owiti and not Maurice Ochieng Owiti, the second sets of names being those of the 1st Appellant. It was his testimony, therefore, that the person who deposited the money was different not the 1st Appellant. 48. PW9 explained that his investigations yielded information that motorcycle registration number KMFW 606U belonged to PW5. He stated that the second motorcycle, had been stolen from the owner. He produced the copy of records for the stolen motorcycle as PExh9 and PW5’s motorcycle as PExh10. He also produced the panga as PExh5, the burnt motorcycles as PExh6(a) and PExh6(b). The complainant’s Mpesa statement was produced as PExh1 and the phone she used to transact as PExh2. 49. On cross-examination the officer narrated to the trial court that the robbery took place at night and none of the witnesses was able to identify the accused persons as the robbers. He stated that nothing was found on the Appellants at the time of their arrest that connected them to the robbery. He stated that the panga was not subjected to 13 | P a g e

page 13 of 25

forensic examination and that there was nothing in its respect that connected it to the two Appellants. 50. The prosecution closed its case at that stage and in its considered ruling that was rendered on 21st November 2022, the court found that a prima facie case had been established against the Appellants and they were placed on their defences. The learned magistrate complied with the provisions of Section 211 of the Criminal Procedure Code and the Appellants elected to tender sworn testimonies. 51. The 1st Appellant testified as DW1 and told the trial court that that on 18th May, 2022, the 2nd Appellant borrowed his motorcycle with a promise of returning it the next day, 19 th May, 2024 which promise the latter did not honuor. 52. The 1st Appellant told the trial court that on 19th May, 2024 he was accosted by a security officer together who was in the company of PW5, who enquired as to the whereabouts of the motorcycle, to which he replied that he had given it to the 2nd Appellant. The 1st Appellant explained that they then told him that the burnt shell of the motorcycle had been found at the scene of a robbery. Feeling apprehensive, the 1st Appellant rushed to Kodonga Police station and reported the loss of the motorcycle. He stated that while at the police he was instructed to sit and wait under and that the 2 nd Appellant was then presented, whereafter both were handcuffed and placed in police custody. The two were later transferred to Pap Onditi Police Station. 14 | P a g e

page 14 of 25

53. The 1st Appellant told the trial court that he saw the shells of the burnt motorcycles at the police station. He maintained that he knew nothing about the attack on the complainant, adding that he first saw her when she testified in court. 54. The 1st Appellant made whether of the prosecution case and queried why the panga was not dusted for fingerprints to confirm if he had at any time handled it. He was emphatic that he was not the one who deposited money at the complainant’s Mpesa outlet on the date of the attack. 55. On his part the 2nd Appellant testified and told the trial court that as on the night of 19th May. 2022 at around 8.00pm, he was at a filling station in Sondu. Later at around 8.20pm, he met the 1st Appellant at a bar called Cool Life in the company of the latter’s girlfriend after which they all left at 9.05pm for Kodonga. 56. The 2nd Appellant stated that on arrival at Kodongs, he parted ways with the 1st Appellant, with the latter leaving the former with his motorcycle to operate on his behalf the following day. 57. The 2nd Appellant told the trial court that at about 9.45pm that evening, he received a phone call from a lady named Everlyne, who requested to be dropped at her home in Achego area. The 2nd Appellant stated that he took the lady 15 | P a g e

page 15 of 25

to Achego, but since it had rained heavily that evening, the roads had been rendered impassable and he was forced to park the motorcycle next to a church near Everlyne’s home, before accompanying her to her house. 58. The 2nd Appellant told the trial court that when he returned to collect the motorcycle where he had parked it, the same was missing. He said that he saw a huge crowd around the vicinity of the church. On enquiring from one Otila, he was informed that two motorbikes had been torched. He met PW2 who told him that the motorcycle had been burnt. 59. The 2nd Appellant stated that he retired to bed that at 8.00am the next morning, he proceeded to the Kodonga Police Station where he reported the loss of the motorcycle and that while at the police station, the 1 st Appellant and PW5 arrived and found him there. He was informed by the police that there were investigations being conducted that involved the two motorcycles that had been burnt. 60. The 2nd Appellant denied visiting the complainant’s Mpesa outlet and stated that he first saw her at Pap Onditi Police Station. 61. Upon cross-examination, the 2nd Appellant told the trial court that he could not remember the name of the church where he parked the 1st Appellant’s motorcycle. He maintained that after parking the motorcycle, he had locked 16 | P a g e

page 16 of 25

it. He further stated that he did not obtain any occurrence book report after making his report because the owner of the motorcycle had already been to the police station. 62. The court directed that the appeal proceeds by way of written submissions and both parties filed their respective submissions. I have perused the petition of appeal, the submissions by the two sides and the record in its entirety. 63. Having considered the grounds in the Petition of Appeal, the submissions and the lower court record, the issues for determination are whether the convictions were safe and the sentences appropriate. 64. Inevitably, this court in determining the issues stated above must first satisfy itself that the ingredients of the offence of robbery with violence were proven against the Appellants beyond reasonable doubt, as is the requirement in law. 65. The offence of robbery with violence is provided for under Section 295 and 296 (2) of the Penal Code as follows: “295. 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 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. 17 | P a g e

page 17 of 25

296(2) 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, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 66. I have carefully considered the petition of appeal, the record of proceedings, the submissions of both parties and the entirety of the evidence adduced before the trial court. As I have stated above, as the first appellate court, I am enjoined to subject the whole of the evidence to a fresh, exhaustive and independent re-evaluation and analysis, while bearing in mind that I did not see or hear the witnesses first-hand, and must therefore give due allowance for that limitation. 67. This duty has been enunciated repeatedly in such authorities as Okeno (supra) and Pandya (supra) which underscore the appellate court’s obligation to consider the entire record afresh and draw its own conclusions on both facts and law. 68. In performing that mandate, this Court must first identify and distil the issues arising for determination. The broad overarching question is whether the convictions of the Appellants were safe and whether the sentence imposed was warranted. However, given the nature of the offence 18 | P a g e

page 18 of 25

and the evidential deficiencies that emerge from the record, the core issues may be reduced to the following: i. Whether the prosecution proved the identification or recognition of the Appellants as the perpetrators of the offence; ii. Whether the circumstantial evidence relied upon by the trial court met the legal threshold for sustaining a conviction; and iii.Whether on the totality of evidence adduced, the prosecution discharged its burden of proof beyond reasonable doubt as required in criminal proceedings. 69. Before delving into those issues, it is necessary to restate, albeit briefly, the legal elements constituting the offence of robbery with violence under sections 295 and 296(2) of the Penal Code. The prosecution was required to prove, firstly, that a robbery occurred, and secondly, that at least one of the aggravating factors under section 296(2) was present, namely that the offender was armed with a dangerous or offensive weapon, or that he was in the company of one or more persons, or that he used or threatened to use actual violence at or immediately before or after the robbery. 70. From the evidence on record, particularly the testimony of the complainant, it is clear that she was violently attacked by multiple assailants armed with pangas and 19 | P a g e

page 19 of 25

sustained injuries, which injuries were confirmed by the medical evidence. Those elements of the offence are therefore not in dispute. What remains in contention is the crucial link between the attack and the Appellants. 71. Turning to the first issue—identification—the evidence reveals a complete absence of direct or positive identification. The complainant, PW1, who was the only person who confronted the attackers at close quarters, was emphatic that she did not see or recognize any of the men who assaulted her, despite briefly putting on her phone’s torch in the confusion of the moment. 72. The complainant confirmed that she had never seen the Appellants before and no identification parade was ever conducted. Her evidence is fully corroborated by PW2, PW3, PW4 and PW6, all of whom were consistent in stating that although they responded to her screams and saw men fleeing the scene, none of them was able to identify the individuals who attacked her, owing to the darkness, the suddenness of the event, and the chaotic atmosphere that prevailed. 73. Particularly telling is the testimony of PW9, the investigating officer, who conceded under cross-examination that none of the prosecution witnesses had identified the Appellants and that nothing was recovered from them— whether stolen items, weapons or incriminating forensic material—that could connect them to the robbery. He 20 | P a g e

page 20 of 25

further clarified that the individual who had deposited Ksh.25,000/- at the complainant’s M-Pesa outlet was one Maurice Odhiambo Owiti, a completely different person from the 1st Appellant, whose name is Maurice Ochieng Owiti. This clarification is vital because the trial court appeared to have treated the similarity of names as a link, yet the investigating officer dismissed that very connection. 74. The law on identification in difficult circumstances is long settled. Courts have repeatedly emphasised the dangers of relying on uncorroborated evidence of visual identification made in unfavourable conditions such as darkness, stress or sudden attacks. 75. In the celebrated case of R v Turnbull [1977] QB 224, courts were cautioned on the need for utmost care where the identification is weak or uncertain. In the Kenyan context, our courts have consistently warned that where identification is not free from the possibility of mistake, the court must incline on the side of caution. In the present case, the absence of identification is not merely a weakness —it is total. There was simply no identification at all. 76. The second issue concerns the circumstantial evidence. The trial court, in convicting the Appellants, relied heavily on the fact that two motorcycles, one of which had previously been used by the 1st Appellant, were recovered burnt near the scene, and that the Appellants later presented themselves at Kodonga Police Station, allegedly 21 | P a g e

page 21 of 25

seeking safety from an irate mob. However, the record reveals substantial evidential gaps and alternative explanations that wholly undermine the probative value of this circumstantial evidence. 77. First, it is undisputed that the two motorcycles burnt by an angry mob acting spontaneously after hearing of the attack. The burning occurred after the robbery had already been completed, and none of the prosecution witnesses stated that they saw the attackers using those motorcycles. 78. Second, the panga that was recovered near one of the motorcycle burnt fingerprinting, DNA shells was analysis or never subjected any other to forensic examination that might have connected it to the Appellants or to the crime. 79. Third, the Appellants’ presence at Kodonga Police Station is not only capable of an innocent explanation, but is entirely consistent with innocence, since both testified credibly that they went there to report the loss of the motorcycle or to seek refuge from the volatile situation in the area. 80. The principles governing the use of circumstantial evidence were stated in Kipkering arap Koske & another v R (1949) 16 EACA 135 and have been consistently reaffirmed by our courts: circumstantial evidence must point irresistibly to the guilt of the accused, it must form a 22 | P a g e

page 22 of 25

complete chain leaving no room for innocence, and it must be incompatible with any reasonable hypothesis other than that of guilt. The slightest break in the chain is fatal to the prosecution case. 81. That requirement was further elaborated in the seminal decision of Sawe v Republic [2003] KLR 364, where the Court of Appeal held, in terms that are directly applicable here, that before drawing the inference of guilt from circumstantial evidence, the court must be certain that there are no other co-existing circumstances that would weaken or destroy such inference. The Court further held that suspicion, however strong, cannot provide the basis of a conviction, and that where the evidence leaves room for doubt, that doubt must be resolved in favour of the accused. 82. Applying the case of Sawe (supra) to the facts of the present appeal, it becomes clear that the circumstantial evidence relied upon by the trial court does not meet the required standard. The presence of burnt motorcycles near the scene does not irresistibly point to the Appellants as perpetrators, particularly in light of the consistent evidence that the burning was done by a mob and not by persons fleeing the robbery. Similarly, the panga recovered was never examined, and therefore yielded no connection whatsoever to the Appellants. The similarity of names in the M-Pesa deposit was expressly negated by the investigating officer. 23 | P a g e

page 23 of 25

83. When one considers these evidential fractures together with the lack of any direct identification, the only logical conclusion is that the convictions were based on conjecture and not on evidence. 84. This Court is therefore compelled to accept that the prosecution did not prove its case to the standard required. The criminal burden of proof, being one that never shifts to the accused, demands that the evidence be cogent, consistent, and compelling. Where, as here, the entire evidential framework rests on unverified circumstantial elements, unsupported speculation and a total absence of identification, the prosecution falls far short of establishing guilt beyond reasonable doubt. 85. Moreover, the defences tendered by the Appellants were not only plausible but were consistent with the objective facts on record. Their explanations concerning the whereabouts of the motorcycle, their subsequent actions in reporting at the police station, and their lack of knowledge of the complainant or the attack were never displaced by any contradictory evidence from the prosecution. In these circumstances, the trial court fell into by rejecting their testimonies without providing legally sustainable reasons. 86. In light of the foregoing analysis and guided in particular by the principles articulated in Sawe (supra), this Court finds that the convictions entered against the Appellants were unsafe, the findings of the trial court unsupported by 24 | P a g e

page 24 of 25

evidence, and the burden of proof not discharged to the level required in criminal law. 87. The irresistible conclusion is that the Appellants were convicted on the basis of suspicion and association with burnt motorcycles rather than on evidence of participation in the robbery. 88. Consequently, the appeal succeeds. The convictions are hereby quashed and the sentences of death set aside. The Appellants, Maurice Ochieng Owiti and Victor Ochieng Alala, are hereby acquitted of the offence of robbery with violence contrary to sections 295 and 296(2) of the Penal Code. They shall be released forthwith unless otherwise lawfully held. DELIVERED, SIGNED & DATED THIS 26th day of November, 2025 JOE M. OMIDO JUDGE APPELLANTS: Present, virtually. FOR APPELLANTS: Mr. Odindo. FOR RESPONDENT: Ms. Muema. COURT ASSISTANT: Mr. Ngoge. 25 | P a g e

page 25 of 25