Peter Wambugu Karaya v Republic

5. The second and third grounds focus on the evidence of identification, alleging that the learned Trial Magistrate erred in law by convicting the Appellant when his identity as the assailant was not proved conclusively and where no formal identification parade was conducted to test the veracity of the minor complainant’s memory. 6. In the fourth ground, the Appellant contends that the Trial Magistrate failed to appreciate the fact that he was not at the scene of the crime and did not participate in the robbery, effectively arguing that his conviction was based on suspicion rather than proof beyond reasonable doubt. 7. lastly, the fifth ground alleges a violation of the right to a fair trial, asserting that the magistrate failed to consider the Appellant’s defense. On the five grounds, the Appellant prays that the conviction be quashed and the sentence set aside. Summary of the Evidence taken at the Trial Proceedings 8. The prosecution’s case was premised on the testimonies of its seven witnesses presented before the trial court. PW1, HNK, the mother of the complainant, testified that on the 6/05/2024, at approximately 10:00 a.m., she dispatched her 7-year-old son, the complainant and his 11-year-old sister, MW, to herd 23 goats. The girl later returned home in Ol-Jorai, leaving the Complainant to manage the herd alone. 9. When evening approached and the complainant did not return, the witness became alarmed and initiated a search. She managed to locate 10 of the goats, but 13 were missing. After alerting neighbours, she eventually found her son lying unconscious in a thicket deep within the forest, suffering from severe head injuries. 10. The complainant was initially taken to Aiyabei Clinic, later transferred to St. Joseph’s Hospital and eventually Nakuru County Referral Hospital for a CT scan and specialized treatment for a skull fracture. He was admitted for ten days and discharged even though he continues to have sight issues. 11. Of the 13 goats, only 12 were recovered by the police after investigation and arrests. The witness was not present at the point of arrest and recovery but went to the police after arrest. She was unable to identify any as he was seeing them for the first time. 12. The complainant was thereafter issued with a P3 form which was filled at Nakuru PGH. She marked the P3 as MFI 1, discharge summary as MFI2 and CT scan as MFI3. When cross-examined by counsel for the accused, she reiterated that she was not present at the scene where the theft occurred and only saw the three for the first time at the police station. 13. PW2, Cyrus Njau Nchoe, one of the neighbours to the complainant, testified to the events of the 8th of May 2024, two days after the robbery. That while checking his own livestock at approximately 9:30 am, he encountered the 1st Accused, the Appellant’s son, driving a herd of 12 goats. He was then able to identify a specific white, hornless he-goat as belonging to PW1. 14. Upon confronting the 1st Accused, he offered contradictory explanations, initially claiming the goats were his and later asserting he had found them in the forest. PW2 stated to have then strategically delayed the 1st Accused until neighbours and police from the JICA ASTU camp arrived. That during the ensuing commotion, the 1st Accused was apprehended. Upon interrogation the 1st accused named his accomplices. 15. The party visited the home of the 1st accused and found the 3rd accused who was father to the first, and found that a shed had been made for the goats. When asked, the 3rd accused said the goats belonged to his son. He said that he had not known the young man nor the father prior to that date. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 2

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16. Upon cross examination, he said that he did not witness the theft and that when he met the 1st accused with the goats, both 2nd and 3rd accused persons were not with him. He added that the 1st accused had named his accomplices as Amos and Kelvin and the 2nd accused was called Nicholas. He said that when he met the first accused with the goats, the accused had a rungu and was driving the goats to cross the road into the forest and not herding. 17. PW3, Frederick Memusi Reson, described himself as a livestock trader and resident of Ol-Jorai. He reiterated the testimony of PW2’s on how the goats were recovered and arrests effected. He stated to have assisted in the apprehension of the suspects and the recovery of 12 goats. He testified that while the 1st accused was being processed at the JICA Police Post, the Appellant arrived and claimed the goats were his, asserting that his son had done nothing wrong. He confirmed having been part of the search party for the injured boy and the lost goats. 18. Upon cross examination, he told the court that he was called by Pw2 and found the 1st accused bound with ropes while the goats were on the road. He added that he was not there when the complainant got injure just as he wasn’t present when the 1st accused named his accomplices. 19. PW4, the complainant gave his unsworn evidence as a child of tender years following a voir dire examination. The Trial Magistrate described him as traumatized but sharp-eyed. 20. He testified that while herding the goats, he was approached by two individuals who attacked him without provocation. In a pivotal moment of the trial, the minor pointed directly at the Appellant in the courtroom dock, identifying him as the person who struck him on the head with a stone. 21. Even though the child gave an unsworn statement, the court appears to have allowed the defense counsel to cross examine him. That was unusual and unexpected. 22. PW5, the officer in charge of the JICA Police Post, testified that he received the initial report of the robbery on the 7/05/2024. On the following day, he responded to the scene at Kambi Turkana where a lynch mob had apprehended the 1st and 2nd Accused. He confirmed that photos of the recovered goats were sent to PW1 who positively identified them as hers. The officer testified that the Appellant was arrested after he came to the station claiming the goats belonged to his household and were kept in a pen on his property. 23. PW6 presented the medical evidence having treated the complainant at Nakuru County Referral Hospital and filled the P3 form. Her findings indicated that the minor had multiple fractures of the skull and facial bones, diffused brain oedema, and tension pneumocephalus. The injuries were classified as grievous harm and were consistent with a violent assault using a blunt object. The witness produced the P3 form as PEX1, discharge summary as PEX2 and CT scan as PEX3. None of the accused persons had any questions for the witness in cross examination. 24. PW7, No. 23xxx IP Henry Momanyi, the investigating officer in the matter recounted receiving the suspects and the case file from the JICA Post. He visited the complainant in the hospital and observed that the child was initially unable to speak due to his injuries. He eventually recorded the boy’s statement and substituted the initial charges with the capital offence of Robbery with Violence. 25. Upon cross-examination, the witness told the court that he visited the scene of crime at Ututi area and that the 1st accused was brought to the station on a Thursday evening and could only be taken to court the following Monday. 26. At the conclusion of the prosecution case, the Appellant was established to have a case to answer and thus placed on his defence. He chose to give a sworn statement in which he averred to have been a farmer https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 3

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and charcoal burner in Ol-Jorai as well as the father of the 1st Accused. He denied any involvement in the robbery, claiming he was not at the scene of the crime on the 6/05/2024. Regarding his arrest, the Appellant testified that he only went to the police station to inquire about his son’s welfare after learning of his apprehension. 27. He alleged that the police arrested him arbitrarily, telling him that he and his son work together in crime. Under cross-examination, the Appellant admitted that the stolen goats had spent the night in a pen at his homestead but insisted that his son had brought them there from a homestead in the forest. 28. It is however of note that in his sworn testimony, accused 1 told the court that it was the appellant who brought the goats home and sent him to go and herd on the day he was arrested. That accused recounted having outrightly to Pw1 so, when confronted, who called the appellant but his number was not reachable. 29. At the conclusion of recording evidence from both sides, the trial court delivered a judgment dated 24/12/2024, in which it found the appellant guilty and convicted him of the charge of robbery with violence. The Appellant was subsequently sentenced to death on the 24/12/2024. 30. The Court directed that the appeal be canvassed by way of written submissions and gave the parties herein timelines for filing their submissions. Both parties filed their respective submissions. Summary of the Appellant’s Submissions 31. The Appellant’s submissions dated 16/06/2025 are founded on three main issues being: the failure of identification, the failure to prove the statutory ingredients of the offence, and the non-consideration of his defense. The Appellant argues that the evidence of identification was insufficient to sustain a conviction. He emphasizes that he was identified solely through a dock identification, which he describes as worthless in the absence of a prior identification parade. He relies on the Court of Appeal decision in Peter Mwangi Mungai v Republic, Criminal Appeal No. 140 of 2000, which cautions that dock identification is unreliable because the witness's attention is unfairly drawn to the person sitting in the accused person’s dock. 32. Furthermore, the Appellant highlights the testimony of PW6, Dr. Osore, who noted that the complainant initially stated he was assaulted by individuals he did not know. He argues that because the complainant was found unconscious and suffering from brain oedema, his subsequent identification in court was likely a result of memory distortion or coaching rather than genuine recognition. Citing Republic Vs Turnbull (19763, All ER 549, the Appellant submits that the trial court failed to examine the conditions under which the initial observation was made, such as distance and duration. 33. The Appellant submits that for a conviction of Robbery with Violence under Section 296(2), the Prosecution must prove specific elements: being armed, being in company, or using personal violence. He cites Oluoch vs Republic [1985] KLR 549 to argue that the Prosecution failed to produce any evidence linking him specifically to the stone used in the attack or placing him in the company of the 1st or 2nd Accused at the precise time of the robbery. He contends that the Prosecution’s case rested on the assumption of a racket without individual proof of his participation. 34. The Appellant asserts that his right to a fair trial under Article 25(c) of the constitution was violated because the Trial Magistrate ignored his alibi defense. He argues that his testimony, stating he was a charcoal burner and not present at the crime scene, was consistent and not shaken during crossexamination. 35. Regarding the sentence, the Appellant argues that the mandatory death penalty violated several constitutional articles, including Article 28 on right to dignity and Article 50(2)(p) on least severe https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 4

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punishment. He submits that the Trial Magistrate failed to consider his mitigation statement and erroneously believed that the death penalty was the only possible sentence under the law. He implores this court to exercise the discretion restored by the Muruatetu jurisprudence to award a lesser sentence. Summary of the Respondent’s Submissions 36. The Respondent filed its submissions dated 10/03/2025 urging the court to uphold the conviction and the sentence. The Respondent argues that all the ingredients of Section 296(2) of the Penal Code were proven beyond reasonable doubt. Citing Dima Denge Dima & Others vs Republic [2013] eKLR, the Respondent emphasizes that the elements of robbery with violence are disjunctive. Proving any one of the elements; being armed, being in company, or wounding, is sufficient for a conviction. In this case, the Respondent notes that the 7-year-old victim was hit with a stone (a dangerous weapon), was attacked by two people and suffered life-threatening injuries. 37. On identification, the Respondent counters the Appellant’s challenge to identification by invoking the Doctrine of Recent Possession. Citing Athuman Salim Athuman v Republic [2016] eKLR and Isaac Ng’ang’a Kahiga v Republic, Criminal Appeal No. 272 of 1997, the Respondent argues that evidence of recent possession is often more dependable than eyewitness identification because it is independently verifiable. 38. The Respondent points out that 12 of the stolen goats were established to have been in the possession of the appellant, within 48 hours, and recovered in the custody and possession of his son who told the court that he was handed over the animals by the appellant. 39. The Appellant offered contradictory and unbelievable explanations for their presence. Citing Johanna Ndungu v Republic, Criminal Appeal No. 116 of 2005, the Respondent submits that the combination of the minor’s dock identification and the physical recovery of the livestock from the son, who linked the animals to his father, creates a very strong presumption of participation in the robbery. 40. On the issue of sentencing, the Respondent argues that the death penalty is the prescribed sentence for robbery with violence. The prosecution highlights the vulnerability of the victim and the brutality of the attack, leaving a small child for dead in a remote forest, as extreme aggravating circumstances that warrant a stiff deterrent sentence. Issues, Analysis and Determination 41. This court sitting as the first appellate court in the matter, is inclined by the decision enunciated in Okeno vs Republic (1972) EA 32. The decision obliges the court to re-evaluate the entire evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not the conviction and sentence should be upheld. In performing this duty, the court is reminded of the fact that it neither saw nor heard the witnesses testify and must therefore give due allowance for the trial court’s advantage in assessing witness demeanour. 42. The court has carefully perused the trial court record, the judgment, and the submissions from both parties, and identifies the issues for determination to be whether the prosecution proved its case to beyond reasonable doubt, in other words, whether the ingredients of the offence under Section 296(2) of the Penal Code upon which the Appellant was charged with were proven to the required standards; and, whether the sentence imposed was appropriate. 43. The offence of Robbery with Violence is coded under Section 296(2) of the Penal Code which provides that an offender is guilty of Robbery with Violence if: (i) The offender is armed with a dangerous weapon or offensive instrument; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 5

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(ii) The offender is in company with one or more persons; and, (iii) At, or immediately before, or immediately after the time of the robbery, the offender wounds, beats, strikes or uses other personal violence to any person. 44. As established in Dima Denge Dima & Others vs Republic [2013] eKLR, these elements are to be read disjunctively. Proving any one of them is enough to satisfy the charge. In the circumstances, the Prosecution proved all the three aforementioned element. First, the attackers used stones, which PW6 confirmed to have caused the minor skull fractures. A stone used in such a manner is in no doubt a dangerous weapon. Second, both the complainant and the circumstances of the 1st Accused’s arrest confirm that multiple individuals were involved in the racket. Finally, the fact that the CT scan having revealed multiple fractures of the skull and facial bones and diffused brain oedema confirms wounding of the minor causing him grievous harm at the time of a robbery. 45. The foregoing leaves no doubt that the offence of Robbery with Violence was committed. The question then is whether it is the Appellant, in company of other person(s) who perpetrated it. The Appellant challenge the reliability of his identification by the 7-year-old complainant. This court is mindful of the inherent dangers of dock identification evidence, particularly when it comes from a single witness under traumatic circumstances. Tritely and as was held in Charles O. Maitanyi vs Republic [1986] KLR 198, the Court of Appeal warned that the evidence of a single identifying witness must be tested with the greatest care before a conviction is entered. 46. The factors to be considered in such a test are codified in the R v Turnbull [1977] QB 224; [1976] 3 All ER 549, which require an appellate court to scrutinize the conditions of the observation: the duration, the distance, the lighting, and any prior acquaintance with the suspect. In the instant case, the robbery occurred at 10:00 am in a forested herding area. While the forest may have thickets, the court holds that the daytime visibility provided a conducive environment for perception. The complainant, though young, was assessed by the Trial Magistrate as sharp-eyed. 47. The Appellant argues that the dock identification by PW4 was worthless because it was not preceded by a formal identification parade. It is trite law that dock identification is suggestive and generally of low probative value. However, the court in Livingstone Mwangi v s Republic [2009] eKLR held that dock identification is not automatically inadmissible if it is corroborated by other evidence. As herein, the identification does not rest solely on the child’s finger-pointing in court. There is a powerful circumstantial link: the recovery of the stolen livestock on the Appellant’s premises within 48 hours. 48. Furthermore, the Appellant’s son was caught in possession and in the act of driving those goats. As Accused 1, he strongly asserted without challenge that it was the appellant who brought the goats home and asked him to go herding. This evidence creates a nexus between the crime scene and the Appellant’s homestead. The Trial Magistrate also noted the Appellant’s behaviour at the police station, where he claimed ownership of the stolen property. This conduct serves as a form of recognition through selfimplication that bolsters the child’s identification. 49. Regarding the Appellant’s argument that the complainant initially told the doctor he did not know his attackers, the court must consider the medical context. The child arrived at the hospital with brain oedema and altered consciousness. In Keter v Republic [2007] 1 EA 135, it was recognized that a victim in a traumatic medical state cannot be expected to provide a detailed or accurate description immediately. 50. Here, the court notes that the court affirmed that minor inconsistencies or omissions in a witness’s initial account do not necessarily discredit the prosecution case; that courts must consider the physical and psychological condition of a victim at the time statements were made. The court found that a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 6

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witness who is injured, traumatized, or medically unstable cannot be expected to give a full or accurate account immediately. 51. Accordingly, the court finds no reason to disport from the trial court’s position bearing in mind it had the opportunity to observe the child during the voir dire and the testimony and was satisfied with the witness’s credibility. Such trial court’s reasoning and findings of facts regarding the same remains undisturbed for being apt and judicious. 52. The Respondent relies heavily on the Doctrine of Recent Possession to bridge any gaps in the direct identification. This doctrine is a rule of evidence that allows a court to infer that a person in possession of recently stolen property is either the thief or a receiver, unless they provide a reasonable explanation for that possession. 53. To apply the doctrine, the Prosecution must prove four essential elements as outlined in Arum v Republic [2006] eKLR: a. The property was found in the possession of the suspect; b. The property is positively identified as belonging to the complainant; c. The property was stolen; and, d. The theft occurred recently. 54. The court notes that the goats went missing following a violent robbery on the 6/05/2024. 12 goats were later found in possession of a son to the appellant who confirmed to the court that it was the appellant who brought the animals home and had been made for pen at the Appellant’s homestead. His son was caught driving them. The Appellant claimed ownership to the police. Both PW1 and PW2 positively identified a white hornless he-goat as belonging to the complainant’s herd. The appellant never gave an account how he came by the animals just as much as he never made a claim of entitlement in any way. 55. On the Appellant’s argument to have not been in possession because his son brought the goats home, the court finds that the goats having been kept in a pen constructed at the Appellant’s homestead, the Appellant as head of the household is deemed to have knowledge and constructive possession of items kept in common areas of his homestead. Furthermore, that the Appellant initially made a claim to the police that the goats were his but never refuted that position only for him to later change in his defense. That, the court finds not to have shaken the cogent proof of recent possession. The holds that once possession of recently stolen property is proved, the burden shifts to the accused to provide a reasonably plausible explanation. If the explanation is contradictory or clearly false, the presumption of guilt stands. 56. The court therefore, finds that the Trial Magistrate correctly applied the doctrine of recent possession to safely convict the Appellant. 57. On the Appellant’s assertion that his alibi was not considered, the law on alibi is that an accused person does not bear the burden of proving his alibi; rather, it is the Prosecution that must disprove it. However, an alibi is not a magic shield; it must be weighed against the strength of the Prosecution’s evidence. 58. In the circumstances, the Appellant’s alibi was a simple denial: he was a charcoal burner and was not there. He provided no witnesses to corroborate his location on the day of the incidence. Meanwhile, the Prosecution placed him in possession of the stolen goods on the 8/05/2024 and provided a witness and the victim herein who identified him at the scene. The Trial Magistrate evaluated the Appellant’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 7

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defense alongside the co-accused persons and found it wanting because of the contradictory claims regarding the ownership of the goats. The court finds that the trial court did indeed gave an eye to the defense but found it unbelievable when weighed against the totality of the evidence. 59. On constitutionality of the sentence, the court notes that the Appellant was sentenced to death on 24/12/2024. The Appellant argues that the mandatory death penalty violated several constitutional articles, including Article 28 on right to dignity and Article 50(2)(p) on least severe punishment and urges this court to exercise the discretion restored by the Muruatetu jurisprudence to award a lesser sentence. 60. On the propriety of the sentence, the court derives guidance from the decision of the Court of Appeal in Ashibabi vs Republic [2025] KECA 611 (KLR) where clarification was made that the holding in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR (Muruatetu 1) is inapplicable to the offence of robbery with violence. The court held: “ In Muruatetu 2, the Supreme Court directed that the application of the judgment was limited to murder cases falling within its scope and stated as follows: “To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40(3), robbery with violence under section 296(2), and attempted robbery with violence under section 297(2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.” 61. Further, in Cyrus Kavai Onzere vs Republic (Criminal Appeal 166 of 2016) [2023] KECA 643 (KLR), the court of appeal explained the narrow circumstances under which an appellant may be able to challenge their death sentence in our jurisprudential milieu. That such an appellant must, first, raise the constitutional argument before the High Court so as to preserve the issue for determination before this Court. That did not happen in this case. 62. In upshot, the court finds the appeal unmerited on both conviction and sentence is hereby dismissed in its entirety. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6TH DAY OF FEBRUARY, 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4567/eng@2026-02-06 8

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