Haron Onkendi Kiyondi v Republic

3. The appeal was canvassed by way of written submissions which I have considered. 4. In his submissions, the Appellant reiterated the grounds listed in his Petition of Appeal while the Respondent conceded to the appeal on the grounds that the Appellant was not positively identified and that crucial witnesses were not called to testify before the trial court. 5. The Respondent submitted that conviction was based on the testimony of a single witness (PW1) without caution on the dangers of such evidence and further, that while PW1 claimed to know the Appellant, she did not immediately give his name to others, including her mother (PW3) and sister (PW2), who were with her almost immediately after the incident. 6. The Respondent noted that key witnesses, including Philip Mokaya (who first reported the matter) and Judy (who relayed information to PW2), were never called to testify. The Respondent urged this court to quash the conviction, set aside the sentence, and release the Appellant from prison. 7. The Respondent’s concession to the appeal notwithstanding, this court is still under a duty to reconsider the evidence presented before the trial court as a whole in order to arrive at its own independent findings. (See Kariuki Karanja vs. R (1986) KLR 190). 8. A summary of the Prosecution’s case was as follows: - 9. Veronica Kwamboka (PW1), a businesswoman from Isoge Riontonyi, testified that she knew the appellant, Haron Onkendi Kiyondi, from previous work engagements that he had with him. She explained that on 9th August 2022, the Appellant went to her shop ostensibly to request her for some money which request she did not honour. She stated that the Appellant later confronted her at her gate while armed with a panga which he used to cut her on the head before stealing her handbag containing Kshs. 22,000, her ID, and a cheque book. She stated that she recognized the Appellant and called him by name before he fled. She was taken to hospital by her mother and neighbours. she underwent surgery for the deep cut wound on the head, and remained admitted in hospital for three weeks. 10. PW2, Cynthia Moraa, the complainant’s sister, testified that she learned of the attack from another sister, Judy. She saw PW1’s injuries at the hospital, stayed with her until discharge, and reported to police that PW1 had given an accurate description of the attacker. 11. PW3, the complainant’s mother, stated she found PW1 bleeding heavily. She was told that PW1 had been attacked and robbed. She escorted PW1 hospital but did not see the Appellant at the scene. 12. PW4, Hilda Kwamboka Nyamwea, a clinical officer, confirmed that PW1 sustained multiple cut wounds consistent with a panga attack. She classified the injuries as “harm.” 13. PW5, Vincent Nyakundi, PW1’s brother-in-law, testified that he did not witness the attack but was informed by PW1 that one Hassan had assaulted her. He only came to know the Appellant at the police station. 14. PW6, Chief Inspector Wangila Masinde, the investigating officer, stated that PW1 was familiar with the Appellant from past work engagements and identified him as her attacker. He added that investigations revealed that the Appellant had earlier asked the complainant for money, which she refused to give him. He explained that the attack occurred around 7:00–8:00 p.m. under moonlight, and that the Appellant fled before being arrested ten days later in Suneka area, about 80 km away from the scene of the attack. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19366/eng@2025-10-16 2

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Issues for Determination 15. From the grounds of appeal, the submissions by the Appellant and the Respondent, and upon a review of the record, I find that the following issues arise for determination: a. Whether the Appellant was positively identified as the assailant. b. Whether crucial witnesses were not called and the effect of such omission. c. Whether the Appellant’s right to a fair trial under Article 50 of the Constitution was violated. d. Whether the ingredients of the offence of robbery with violence under Sections 295 and 296(2) of the Penal Code were proved beyond reasonable doubt. e. Whether the conviction was safe and the sentence lawful. Analysis and Determination 1. Positive Identiffcation 16. The trial court relied heavily on the evidence of PW1, who stated she knew the Appellant previously, recognized him during the attack, and called him by name. The record however shows that at no time did PW1 mention the Appellant’s name to PW2 or PW3, both of whom were with her soon after the attack. Furthermore, it is instructive to note that the attack/robbery took place between 7pm and 8pm when visibility may not have been very clear as darkness may have already set in. 17. Kenyan courts have consistently held that visual identification, especially in difficult circumstances, must be treated with the greatest caution. Case law emphasizes on the need for careful scrutiny of identification evidence so as to avoid miscarriage of justice. In Cleophas Otieno Wamunga vs. Republic [1989] KLR 424, the Court of Appeal observed that: “ Evidence of visual identification can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize the danger of error.” 18. In the present case, I find that even though PW1 claimed that she knew the Appellant, the conditions under which identification was made, in the evening hours and under moonlight, called for corroboration, which was lacking. Furthermore, no identification parade was of the alleged recognition. 19. It is therefore my finding that, in the circumstances of this case, the identification of the Appellant by a single eyewitness, under difficult conditions, casts doubt on whether the identification was free from error. 2. Non–Attendance of Crucial Witnesses 20. The record shows that one Philip Mokaya made the first report, and that Judy relayed the information of the attack to PW2. These two individuals were however not called as witnesses. I find that the failure to call the said material witnesses creates a gap in the prosecution’s case and may be construed to mean https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19366/eng@2025-10-16 3

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that their evidence could have been adverse to the prosecution’s case. In Bukenya & Others vs. Uganda [1972] EA 549, the court held that: “ The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. The court is entitled to draw an adverse inference if they fail to do so.” 21. I further find that the omission to call these witnesses denied the court potentially critical evidence on the initial identification of the attacker, thereby weakening the prosecution’s case. 3. Right to a Fair Trial 22. The Appellant alleged that he was not informed of his right to legal representation as guaranteed under Article 50(2)(g) and (h) of the Constitution, which entitles an accused person to choose and be represented by an advocate and, if substantial injustice would result, to have an advocate assigned at state expense. I note that the record does not indicate that this right was explained to the Appellant. 23. The Appellant further alleged that he was held in custody for more than 24 hours before being presented to court, contrary to Article 49(1)(f) of the Constitution and Section 36 of the Criminal Procedure Code. I find that while the Appellant did not show the specific prejudice that he suffered as a result of the violation of constitutional safeguards, such violations reinforce the concern over the fairness of the trial process. 4. Proof of the Ingredients of Robbery with Violence 24. The offence of Robbery with Violence is provided for under the Section 296(2) of the Penal Code as follows:“ 296.Punishment of robbery 25. (1) ……. (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.” The ingredients of this offence were aptly discussed by Cockar, C.J., Akiwumi & Shah, JJ.A. in the case of Johana Ndungu vs. Republic CRA. 116/1995, [1996] eKLR where the Court of Appeal in Mombasa stated as follows:“ In order to appreciate properly as to what acts, constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is ‘use of or threat to use’ actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore -described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved, will constitute the offence under the subsection: 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19366/eng@2025-10-16 4

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iii. If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” [See also Oluoch vs. Republic [1985] KLR]. 26. Similarly, in Dima Denge & Others vs. Republic (2013) eKLR, the Court of Appeal stated as follows: “ the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.” 27. In the present case, the prosecution’s evidence indicated PW1 was attacked with a panga and injured thereby satisfying the physical ingredients of the offence. The key question however, is whether the Appellant was proved, beyond reasonable doubt, to have been the assailant. My finding is that given the doubts over identification, that I have already highlighted in this judgment, and the missing corroborative testimony, the link between the offence and the Appellant was not established with the certainty required in criminal law. 5. Whether the Conviction was Safe and the Sentence Lawful 28. Having regard to the unresolved doubts regarding the Appellant’s identification and the absence of crucial witnesses, I find that the conviction was not safe. I am reminded of the principle in Sawe vs. Republic [2003] KLR 364 that suspicion, however strong, cannot be a basis for conviction. 29. My further finding is that the sentence of 30 years’ imprisonment, though within the discretion of the trial court following the Supreme Court’s decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR (which outlawed the mandatory death penalty), is moot and falls on the wayside in view of my above finding that the conviction was not safe. Conclusion and Orders 30. Having reconsidered the entire evidence on record and bearing in mind the concession to the appeal by the Respondent, I find that the prosecution did not prove its case against the Appellant beyond reasonable doubt. The identification evidence was unsafe, critical witnesses were not called, and there were lapses affecting the fairness of the trial. 31. Accordingly, I make the following final orders: a. The appeal is allowed. b. The conviction for the offence of robbery with violence contrary to Sections 295 and 296(2) of the Penal Code is quashed. c. The sentence of 30 years’ imprisonment is set aside. d. The Appellant shall be released from custody forthwith unless he is otherwise lawfully held. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 16TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19366/eng@2025-10-16 5

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