Samuel Maina Wahuro v Republic

Particulars of the offence being that on the 3rd day of September, 2012 at Wandeto Village being armed with offensive weapon namely Rungu robbed Joseph Karimi Kariuki of his Jacket, sport shoes, wallet and cash Kshs.1,000/- all valued at Kshs.2,150/- and immediately before the time of such robbery wounded the said Joseph Karimi Kariuki. Alternative Charge: Handling stolen goods contrary to Section 322(2) of the Penal Code. Particulars being that on the 8th day of September, 2012 at Wandeto Village otherwise than in the course of stealing, dishonestly retained a pair of sport shoes and a jacket the property of Joseph Karimi Kariuki knowing them to be stolen goods. 2. Having denied the charges, he was taken through full trial, convicted for both main counts and sentenced to suffer death on the 1st count while the sentence on the 2nd count was held in abeyance. 3. Aggrieved, the Appellant proffered an appeal against the conviction and sentence on grounds as amended that; The prosecution did not prove the case beyond reasonable doubt that the Appellant was the perpetrator; PW2 came to court cladded in alleged exhibits hence there was no proof that they were stolen; PW1 also came to court with the alleged exhibits personally hence they could not be regarded as exhibits; and, neither the wife of PW2 nor the Administration Police (AP), and arresting officer or members of the public were summoned to testify as to which Maina they referred to. 4. This is a case where the prosecution called a total of four (4) witnesses. PW1 Joseph Karimi Kariuki was drunk and on his way home at 9.00pm of 3rd September, 2012, when he was accosted by an individual who demanded from him property. Though drunk he could tell they were two people. They took his wallet which contained Kshs.1,000/-, belt, jacket, black shoes with red tip. The people assaulted and injured him. He sought treatment at Oljabet Hospital. Later he learnt of a person who was arrested with some items. He went to the AP Camp where he identified shoes he believed were his. 5. PW2 Thomas Maina encountered Maina, the Appellant at 9.30pm on 3rd September, 2012, a person he had known for 5 years. He used a flashlight for illumination (aid of a torch light) which enabled him to see. He asked him for a phone and money then held and pinned him down. He removed his adidas shoes size 7 ½, took his wallet that had Kshs.5/-, his phone make Samsung and some documents. He went home and the following day reported to Marmanet Police Station. A week later he learnt of the arrest of the Appellant. He went to the police station and found his phone and wallet. Later the Appellant led then to where the shoes were. 6. PW3 John Kithinji a Clinical Officer examined PW1 and filled a P3 in his regard. 7. PW4 No. 87xxx PC Isaac Mwangi was at Rumuruti Police Station when a suspect was brought in by an Administration Police Officer from Sironi AP Camp and other members of public with a Samsung phone, wallet and national identity card suspected to have been stolen on 3rd September, 2012. He stated that they had a report of loss of a phone, Kshs.1,000/-, wallet and shoes from the first victim and a wallet, jacket and shoes from the second victim. That the victims positively identified the suspect. They visited the Appellant’s home and recovered a nylon gunny which contained a jacket in from of the maize field. 8. Upon being placed on his defence the Appellant stated that he was on his way when he encountered a person who asked him about names that were similar to his and when he responded he was arrested, taken to Marmanet Police Station and later charged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/345/eng@2026-01-20 2

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9. With the consent of respective parties, the appeal was to be disposed through written submissions but only the Appellant filed submissions which I have taken into consideration. 10. This being a first appeal, this court is duty bound to re-evaluate afresh evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. In Daniel Njuguna Wairimu v Republic [2010] eKLR it was held that; “ The duty of the first appellate court is. Its duty is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 11. It is urged by the Appellant that the offence as charged was not proved to the required standard. The onus of proof in the matter rested entirely on the prosecution. It behoved the prosecution to prove the case against the Appellant beyond reasonable doubt. Therefore, the prosecution was required to prove every element of the offence. 12. The Appellant was accused of contravening Section 296(2) of the Penal Code which provides thus; “ 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.” 13. In Erick Amunata Onono v Republic [2016] KECA 137(KLR) the Court of Appeal stated that; “ To prove the offence of robbery with violence, the element of stealing must be proved coupled with one or all of the other elements set out in section 296(2), namely that the offender was armed with a dangerous or offensive weapon or instrument; was in the company of one or more others; or immediately before or immediately after the time of the robbery he wounded, beat, struck or used other personal violence on the victim. In Johana Ndungu V. Republic, CR. APP. NO. 116 OF 1995 this Court extrapolated the position as follows: “In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the Penal Code. 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. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2)…” (Emphasis added). (See also Oluoch V. Republic [1985] Klr 549 And Ganzi & 2 Others V. Republic (2005) 1KLR 52).” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/345/eng@2026-01-20 3

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14. In Dima Denge Dima & Others v Republic (2013) KECA 480 (KLR) it was 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”. 15. Both victims testified to their properties having been stolen on the night of 3rd September, 2012 between 9.00 and 9.30pm. PW1 alluded to the assailants having been two while PW2 saw only one person. 16. PW1’s items were not only taken unlawfully as he did not consent to the act, but the theft occurred at the same time with actual violence being unleashed. As the assailant demanded his property he seized his neck, punched and knocked him. He sought treatment at Oljabet Health Centre on 9th September, 2012 which was six (6) days later. But, he had sustained nail scratch marks around the neck, fresh healing abrasive wound on the right aspect of the forehead and swollen reddened eye orbit. 17. PW2 on the other hand said the assailant pinned him down as he demanded for his phone and money and he did remove shoes from the victim’s feet. This was evidence of having restricted his movement before taking his properties having made his intention clear which was a threat of violence. 18. It is apparent that elements of robbery with violence were disclosed hence the question who was the perpetrator of the act. 19. PW1 was drunk he could not tell who the assailant was while as PW2 said he knew the assailant who was the Appellant herein. He had known him for a period of 5 years and he used a torch light to illuminate him. 20. In Cleophas Wamunga v Republic [1989] KECA 47 (KLR) the court held that; “ Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction. Recognition may be more reliable than identification of a stranger but mistakes in recognition of close relatives and friends were sometimes made.” 21. In Kiilu & Another v Republic [2005] KECA 335 KLR the Court of Appeal held that; “ Subject to certain well known exceptions, a fact could be proved by testimony of a single witness but that rule did not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it was known that the conditions favouring a correct identification were difficult. In such circumstances, what was needed was other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury could reasonably conclude that the evidence of identification, although based on the testimony of a single witness, could safely be accepted as free from the probability of error.” 22. Circumstances favouring correct identification may have not been apt since the strength of lighting was not indicated. For PW2 it was also a case of recognition but in Republic v Turnbull [1977] QB 224 it was held that; “ If the quality [of the identification evidence] is good and remains good at the close of the accused’s case, the danger of mistaken identification is lessened; but the poorer the quality, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/345/eng@2026-01-20 4

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the greater the danger. In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbor, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about the special need for caution […..] When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example, when it depends on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.” 23. However, this was a case where some recovery was made. The Appellant was taken to Rumuruti Police Station by members of public and an Administration Police Officer from Siron. Some items had been recovered. When PW1 was called to identify the Appellant, he identified the shoes he was wearing by wear and tear, black laces but the part where they were tied was red in colour. 24. PW4 testified that they visited the home of the Appellant and in a maize plantation was a nylon/manilla gunny bag which contained a pair of sport shoes while he wore another pair of shoes. Inside the bag was also a faded purple jacket that PW1 identified as his. It had a peculiar mark which was on the left side that had been gnawed by rats. 25. PW2 identified his sport shoes, a black Samsung phone and a wallet. It is argued by the Appellant that the arresting officer was not called to testify. Circumstances under which the arresting officer and other people who arrested the Appellant were not called to testify remained unexplained. But, could this have led to an acquittal? If evidence adduced is insufficient, then it could lead to a dismissal of the case resulting into an acquittal. 26. But, this is a case where the re-arresting officer PW4 carried out further investigations and caused the Appellant to lead them to the recovery of some exhibits. In as much as an Accused is presumed to be innocent with no duty to prove his innocence, the prosecution having adduced evidence establishing the fact of the Appellant having been in possession of items positively identified by the victims, he was obligated to render an explanation of how he came to possess them. In his defence he stated how he was arrested and nothing else. 27. As correctly submitted by the Appellant this brings in the issue of circumstantial evidence. Should the court have inferred guilt on the part of the Appellant based on circumstances that transpired. In Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990 (UR) the court stated that; 28. “ 1. The circumstances from which an interference of guilt is sought to be drawn, must be cogently and firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3. The circumstances taken circumstantively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” Without any explanation of how he came to possess shoes and a jacket positively identified as those of PW1 and sport shoes belonging to PW2, the only reasonable inference to be drawn is that he was one of the individuals who robbed PW1, a person he had known for 2 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/345/eng@2026-01-20 5

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29. In respect to PW2, he had a torch that he used to gleam the suspect. It turned out he knew him very well, hence he recognized him by physical appearance. It was not insinuated that the victims could have had some ulterior motive of coming up with such allegations, hence they need to be believed. In the premises, I find the learned trial Magistrate having not misdirected himself in reaching the decision to convict and sentence the Appellant according to what the law provides. 30. The upshot of the above is that the appeal lacks merit. Accordingly, it is dismissed in its entirety. 31. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20 TH DAY OF JANUARY, 2026. ............................ L.N. MUTENDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/345/eng@2026-01-20 6

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