Bakari Bati v Republic

2. Grounds of Appeal 5. The Appellant’s grounds of appeal, summarized, are that the learned trial magistrate erred in law and fact by: a) Relying on visual identification under unfavourable conditions;b) Failing to properly apply Section 200 of the Criminal Procedure Code;c) Denying a fair trial by closing the prosecution case without availing the first report despite request;d) Holding that the prosecution proved its case beyond reasonable doubt;e) Failing to consider the defence, thereby occasioning a miscarriage of justice. 3. Duty of the First Appellate Court 6. This being a first appeal, this Court is obligated to re-evaluate and re-analyse the entire evidence and draw its own conclusions, while bearing in mind that it did not have the benefit of seeing and hearing witnesses, as set out in Okeno v Republic [1972] EA 32. 4. Prosecution Case 7. PW1 Reuben Mutembei Thine testified that on 18/10/2014 at about 10:30 p.m., while heading home from his shop at Likoni Ferry, he was pushed by a man who then assaulted him. The attacker was joined by two others. The first attacker hit him with a metal bar on the right jaw, causing him to fall onto a parked motorcycle. He was robbed of Kshs. 6,000/= and a Tecno mobile phone. 8. PW1 stated that the area had sufficient lighting from Kenya Power and that he recognized the 1st accused person (the Appellant) as the one who attacked him. He knew him previously as they operated businesses in the same area. 9. PW2 Harun Mutembei Kaunga corroborated PW1’s evidence. He witnessed the initial assault, confirmed that the area was well lit, and stated that the Appellant was the first attacker who was later joined by others. PW2 retreated due to being outnumbered and later returned with help. 10. PW3 Mathew Mwiti testified that he was informed of the attack and found PW1 lying on the ground bleeding. 11. PW4 Dr. Julius Maneno Sango produced the P3 form showing that PW1 sustained serious injuries, including a fractured mandible and loose teeth, caused by a blunt object. The degree of injury was assessed as maim. 5. Defence Case 12. The Appellant gave an unsworn statement. He stated that he is a boda boda operator and was arrested on 28/12/2014 alongside others. He denied the offence and stated he was shocked by the charges. 6. Issues for Determination 13. The main issue for determination is: i. Whether the prosecution proved its case beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4827/eng@2026-04-16 2

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7. Analysis and Determination a. Ingredients of the Offence 14. The ingredients of robbery with violence under Section 296(2) of the Penal Code were set out in Johanna Ndung’u v Republic, namely: * Being armed with a dangerous weapon; or * Being in the company of one or more persons; or * Using or threatening violence. 15. These ingredients are disjunctive, and proof of any one is sufficient. b. Proof of the Ingredients 16. On whether the offender was armed, PW1 testified that the Appellant used a metal bar, and PW4’s medical evidence confirmed injuries consistent with blunt force trauma. The absence of physical production of the weapon does not negate the consistent and corroborated evidence on its use. 17. On whether the Appellant was in the company of others, both PW1 and PW2 testified that the attacker was joined by others who participated in the assault. This element was proved. 18. On the use of violence, the medical evidence and eyewitness testimony clearly established that the complainant was violently assaulted and seriously injured. c. Identification 19. The Court has carefully examined the issue of identification in light of the principles in Wamunga v Republic and Roria v Republic. 20. The evidence shows that: * The incident occurred in a well-lit area; * PW1 knew the Appellant beforehand (recognition); * The interaction was not fleeting; * PW2 corroborated the identification. 21. The Appellant did not challenge the existence of lighting or offer any plausible explanation to displace the prosecution evidence. 22. The Court is satisfied that this was a case of positive recognition, which is more reliable than mere identification of a stranger. d. Grounds of Appeal 23. Upon re-evaluation of the entire record: * The claim on faulty identification is not supported by the evidence; * The record shows that the trial court complied with procedural requirements, including those relating to Section 200 of the Criminal Procedure Code; * The allegation regarding failure to avail the first report does not demonstrate any prejudice suffered by the Appellant; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4827/eng@2026-04-16 3

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* The prosecution evidence was consistent, corroborated, and proved beyond reasonable doubt; * The trial court considered the defence and properly rejected it as a mere denial. 24. Accordingly, none of the grounds of appeal have been proved. 25. Further, the record demonstrates that all procedural requirements were adhered to, and the Appellant received a fair trial. 5. Conclusion 26. The prosecution proved its case beyond reasonable doubt. 27. The conviction was safe, and the sentence lawful. 28. The appeal lacks merit and is hereby dismissed in its entirety. 9 Orders 29. The conviction and sentence are hereby upheld. 30. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 16TH DAY OF APRIL 2026. WENDY KAGENDO JUDGE In the Presence of: The Appellant in person Mr. Sirima for the State Bebora – Court Assistant SIGNED BY/FOR: HON. LADY JUSTICE WENDY MICHENI THE JUDICIARY OF KENYA MOMBASA HIGH COURT HIGH COURT CRIMINAL DATE: 2026-04-16 17:41:48 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4827/eng@2026-04-16 4

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