Moses Kirimi v Republic

leaving behind his motorcycle and it’s key. The Appellant herein remained with the two assailants. They left together, one riding the complainant’s motorcycle and the other two the other. 4. The complainant called his brothers Charles Michuki and Bernard. He urged them to call the track company to track the motorcycle. He also informed PW-3 about it. PW-3 tried to call the company to track it but in vain since it was on a Sunday. 5. The complainant reported the incident at Tigania East Police Station. He described the Appellant herein as a short, dark person who had a gap of front teeth. He’s the one who had posed as a customer and the only one he could be able to identify of the three assailants. 6. PW-4 investigated the matter. He went to the gas station where the motorcycle had been fueled to get the phone No. used to pay the 100 Kshs. It was No. 0111649623. It was registered in the name of Susan M’itabara. He as well got Safaricom data for the calls made using the said number which led him to tracing of the Appellant herein. The Appellant was arrested on 11/6/2022 at the trading center. He was taken to Muthara Police Station. Upon interrogation he stated that they sold the motorcycle to Dennis Mureti. He took them to Mureti’s place. Mureti said he was sold the motorcycle by the Appellant and two others for 20,000 Kshs and he sold the same to Mwongela. The officers were not able to trace Mwongela, and so also the said Motorcycle. 7. On 17/6/2022 PW-5 conducted an identification parade at Muthara Police station. He had 10 members in the parade who looked like the suspect (Appellant). The suspect was in cells and the witness (complainant) at a police canteen, behind the Police station. The parade was done along the verandah. The Appellant positioned himself between member No. 4 and 5 in the parade. The complainant was called. He passed others and pointed out at the appellant as the suspect who had hired him on the material date. 8. The Appellant was satisfied with the way the parade was conducted and attested his thumb print to the said effect. He was then charged with the offence carried in the charge sheet. 9. The Appellant gave sworn testimony in his defence and called no other witness. 10. In his defence he stated that he comes from Kiguchwa and is a construction worker. On 11/12/2022 he was at Kaelo doing miraa work. He did not commit the offence. 11. At about 7.00 Pm while harvesting miraa he was approached by three men. One was ahead of the others. He pointed at the Appellant and he was arrested. He was taken to Muthara Police Station. He was questioned about a Motorcycle which he had allegedly stolen, a KBS. He said he knew nothing about it. He was tortured and the same happened the following day, which was on a Sunday. He then saw some people outside and was asked to sign documents. He refused to sign. He was threatened and agreed to sign. On 18th they said they’ll do a parade. He refused to sign the parade documents. He was slapped by a woman and fell down. He then agreed to sign. The parade conducted had 9 members. He had stood in the middle. A person went and held him, alleging he was the thief. 12. The Trial Court evaluated the evidence and found the Appellant guilty of the offence. He was convicted and sentenced to suffer death as per law provided. 13. Dissatisfied with the said conviction and sentence, he appealed to this Court on the following grounds:1. That the produced exhibit was not found in his possession. 2. The sentence meted is harsh and excessive. 3. The complainant did not disclose him in the OB report as the culprit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/479/eng@2026-01-27 2

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4. The evidence does not connect him to the offence. 5. The light used to identify him was not analysed. 6. Prosecution did not prove their case beyond reasonable doubt. 7. The prosecution case was full of contradictions. 8. The defence was not weighed. 14. As the first Appellate Court, I am duty bound do re-evaluate the evidence afresh and arrive at my own independent conclusion, bearing in mind that I never had the advantage of hearing and seeing the witnesses as they testified. 15. I have therefore evaluated the charge, evidence adduced, Judgment of the Lower Court and sentence meted; grounds of the Appeal and submissions by both parties. 16. Section 295 of the Penal Code defines robbery as theft with violence or threat of violence. 17. Section 296(2) describes Robbery with violence and the circumstances that elevate simple robbery to an aggravated offence punishable by death. 18. For the offence to be sustained by the prosecution, two levels must be met or established. 19. The first one is base offence of robbery under Section 295, where theft or rather taking property capable of being stolen is established. The theft should be from the person or in their presence. During the process there should be use of violence or threat. The aim should be to obtain or retain the stolen property or to prevent resistance. 20. The additional ingredients under Section 296 (2) are that:1. The offender should be armed with a dangerous or offensive weapon or instrument. Or 2. Be in company of one or more other persons. Or 3. Wounds, beats, strikes or uses personal violence on any person; and At, immediately before, or immediately after the robbery. 21. Only one of these elements needs to be proved in addition to the robbery ingredients. They are disjunctive, not cumulative. 22. In the case of Oluoch –vs- Republic (1985) KLR, the Court of Appeal explained that robbery with violence arises if any of the three statutory conditions (weapon, company, personal violence) is proved. Proof of anyone of them would suffice for the offence. 23. In this case, the complainant stated how the Appellant, posing as a normal customer, requested to be taken to Kandebene from Muriri stage. The Complainant agreed at a fee of 200Kshs. Along the way he urged him to stop to deliver food to an elderly person. He removed his phone and made a call. No elderly person appeared, but two men on another motorcycle. They drew out a machete and ordered him to give out the motorcycle or he be killed. He gave out the motorcycle and it’s key before he escaped into the bush. The three then left with the two motorcycles. These set of facts as expounded hereinabove, gives rise to the offence of robbery with violence. Theft is established, the assailants were three, they threatened to use violence or rather to kill the complainant. They were armed with a machete. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/479/eng@2026-01-27 3

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24. The issue that remain to be determined is whether the Appellant herein was among the three assailants. PW-1 said he identified him by his teeth, eyes, and even height, as well as facial appearance. 25. PW-4 in his evidence revealed that when the victim reported the case he described the person who hired him as short, dark and having gap of the front teeth. The evidence is consistent with what the victim told the Court. 26. The incident happened at 11.00 am, during the day. The victim deliberated with the Appellant as they negotiated on the fee. They were together from that time until the time of the actual robbery. He had ample time and opportunity to see the assailant and register his physical appearance as he claimed. 27. The evidence is buttressed by the other available evidence which points firmly to the Appellant as the real culprit. The evidence leading to his arrest was obtained from the number he used to pay for 100 Kshs fuel, using a Pay bill Number. Also upon arrest he accepted the offence and even disclosed how he sold the motorcycle though it was not recovered as the last person allegedly sold to was not traced. The other is that he was positively picked from a properly conducted identification parade, by the Complainant, as the culprit. The evidence when weighed together confirms beyond reasonable doubt that he committed the offence. 28. The mandatory sentence for the offence is death. The said sentence cannot therefore legitimately pass as harsh and excessive. It’s the only available legal sentence for the offence. 29. Given the foregoing considerations, the Appeal must fail, and is hereby dismissed for want of merit. DATED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2026. S.M. GITHINJI JUDGE Appearances: Appellant present in Nyeri Maximum prison Ms. Adhi for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/479/eng@2026-01-27 4

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