Walter Moturi Nyakina v The Republic

3. 2. That the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant based on insufficient evidence of recent possession without observing that there was no recovery made of the items allegedly stolen/robbed. 3. That the learned trial Magistrate erred in law and in fact by not finding that the appellant's constitutional rights to a fair hearing under Article 25 (c) and 50 (2) (h) of the Constitution of Kenya 2010 were not guaranteed. 4. That the learned trial Magistrate erred in law and in fact by failing to find that the key ingredients of the offence of robbery with violence were not established against the accused person. 5. That the learned trial Magistrate erred in law and in fact by failing to resolve the alleged inconsistencies and contradictions on record in favour of the accused person which went to the root core of the charges he was facing. 6. That the learned trial Magistrate erred in law and in fact by failing to give due regard to the appellant's defence which exonerated him from any wrongful doing. 7. That the learned trial Magistrate erred in fact by meting out a harsh, unfair and excessive sentence to serve twenty years imprisonment which was not justified in light of the weak and unsubstantiated evidence that was tabled against him during trial. This is a first appeal and as such this court is under a duty to re-evaluate and re-analyse the evidence produced in the trial court as if it were conducting a re-hearing and come to its own independent conclusion but keep in mind that it did not take the evidence of the witnesses and as such did not have the opportunity to observe the demeanour of the witnesses. Addressing this principle in Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR), the Court of Appeal stated that; ‘In all these cases the principle has been restated that our duty as a first appellate court is to revisit the evidence that was tendered before the trial court afresh, analyse it, evaluate it and arrive at our own independent conclusion, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving due allowance for that.’ Prosecution’s case 4. JJ, a resident of Sabaki who was the complainant in the matter told the court that on 9th March 2021 she left work at around 2 p.m. and met the appellant who introduced himself as James working for Simba Cement and she also introduced herself. The appellant promised to get her employment and they exchanged phone numbers. The appellant called her after one week. 5. On 7th April 2021 the appellant told her that he had gotten a night shift work for her and they should meet at Makadara at 7 p.m. When they met, they walked on foot heading to a company called Athi Pack. The appellant pointed at gate but suddenly, he hit her and she fell down. The appellant strangled her in a bush near the factory. She added that he had a knife and threatened to kill her. He took her bag phone, phone charger and requested for PIN and he removed her clothes and had sex with her. She added that the appellant told her that he was going for a short call and he disappeared. She stated further that the appellant had thrown away the complaint’s shoes and clothes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6540/eng@2026-05-15 2

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6. She added that, after the ordeal, she met some young men who she told what had happened and she went home. She called Safaricom and asked them to block her line and the following day, she made a report to police and was referred to hospital where she was examined and took the report to the police. 7. The complainant testified further that the police requested for her phone number and they were able to track the accused as they had communicated. On 19th September 2021, she was told that a suspect had been arrested. The police lined up some men and she was able to identify the appellant who she had seen during daytime. She identified an identification parade form, P3 form, PRC form, Lab report and Gender Violence Recovery Center form. She added that she tried to scream but the appellant had strangled her. 8. In cross-examination, the complainant stated that she told the doctor that she had known the appellant for a period of one week. She added that there are many companies near Rhino Cement. The appellant stole her phone and cash 410/=. PW1 denied that the appellant was her boyfriend. She added that the appellant raped her twice and she didn't have the phone receipt. She confirmed that the identification form showed that there six persons participated in the parade. 9. PW2 was number 88421 Cpl. Caroline Seet attached at Athi River police station who was the investigations officer in the matter. She told the court that on 9th April 2021 the complainant made a report of robbery. The officer narrated what the complainant told her and added that she referred the compliant to hospital and issued her with a P3 form. She recorded the complainant’s statement and took her phone line number 0797xxxxxxx. 10. The witness added that she requested for phone data from Safaricom in order to know the number of the suspect. She got No. 0724xxxxxx which was last to communicate to complainant. She went further and requested the name of the suspect and got it as Walter Nyakina of identity card number 31xxxxxx. She then used the data to try and find the number which frequently communicated to the appellant and got a number for a lady who took her to appellant's home. 11. The officer added that she got another report from report office for another rape incident on 18th September 2021 at 9:30 p.m. and she was given contact number of the suspect. She asked the CID officers to locate appellant’s number and got feedback that the he was at Site area. In company of two police officers namely P.C. Sanya and P.C Murage, they went straight to appellant's house and they found him sleeping and arrested him. She recovered six mobile phones from appellant’s house including one phone he had stolen from another victim. 12. On 19th September 2021, the witness called the complainant and an identification parade was conducted by Deputy OCS one Inspector Kalimba. The complainant identified the accused during identification parade. She added that the complainant's phone was not recovered and that the complainant did not have a receipt for the stolen phone. 13. When she was cross-examined, PW2 told the court that the incident occurred on 7th April 2021 which was 28 days after the appellant and the compliant had met. The P3 form indicated that complainant knew the appellant for a period of one week. She denied that there was inconsistency on what was stolen and when the appellant and the complainant communicated. She added that the identification parade had eight members. 14. John Njuguna, a Clinical Officer in Nairobi Women Hospital produced medical report, PRC form, P3 form and lab test report for complainant who was examined on the 8th April 2021 by Christine Cakindi who had left their facility. She stated that on physical examination, there were no injuries noted and the medical laboratory did not reveal any infection. The pregnancy test was negative. When she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6540/eng@2026-05-15 3

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was cross examined, PW3 stated that there were no injuries noted on the complainant’s private parts neither were there sperms or bruises noted. She added that the creamish discharge was normal and they did not find any infection. Defence case 15. The appellant gave a sworn statement and told the court that on 9th March 2021 at 2 pm, he met a girl at the SGR and seduced her and she got interested. They exchanged telephone numbers and he told her that his phone had issues. He lied to her that he was single and they agreed that he would call her. 16. The appellant added that on 7th April 2021, he called her at 10.45 am and they agreed to have sex and they met in the evening. He added that the girl told him that her children did not have food and she requested for money for food and he gave her Kshs 1,000.00 and she went away on a motor bike. The girl came again and asked for Kshs 3,000.00 and demanded a further Kshs 2,000.00 and he told her they should go to a lodging first. She refused and got angry and went away. 17. The appellant added that he warned the lady that he would report her for taking his Kshs 1,000 yet they did not have sex. He added that the girl went and reported him to the police and nothing was recovered from him and there was no proof of existence proof of a phone. He denied stealing Kshs 410.00 from her and denied raping the complainant. He admitted in cross examination that he had been convicted in other cases. Analysis and determination 18. The appellant filed submission dated 29th July 2025 while the respondent filed theirs dated 21st October 2025. Having gone through the submissions of the parties and the petition of appeal alongside the evidence produced in the trial court, I discern that the issues I need to handle in this appeal are whether there was sufficient evidence to prove the ingredients of an offence of robbery with violence and whether the identification parade was conducted properly. 19. I will begin with the issue of identification parade. From the evidence of the complainant, she met the appellant twice. First on the date they introduced themselves to each other and the second on the date of the incident. In his defence, the appellant confirmed this fact save that he did not rob the complainant in the second meeting which was on 7th April 2021. The complainant was called by the police after the appellant was arrested for purposes of identification. 20. The appellant was as required present all through during the testimony of the complainant and the investigating officer who testified how the identification parade was done. The only issue he raised about the parade during the hearing was the number of participants. In his submissions before this court, the appellant has claimed that the witnesses contradicted each other on the number of the participants. The purpose of an identification parade is to pick out the perpetrator in a manner that is not open to a possibility of a mistaken identity or pre-determined identification. It is not necessary where the complainant or a witness is able to pick out the offender with certainty especially where the offender is known to the witness as a matter of recognition. In James Tinega Omwenga v Republic [2014] KECA 670 (KLR), it was held that; ‘This is because the purpose of an identification parade is to test the correctness of the identification of an accused person by a witness who did not know him prior to the incident.’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6540/eng@2026-05-15 4

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21. Similarly in Samuel Mburu Ngethe v Republic [2020] KEHC 490 (KLR), it was held that; ‘The purpose of conducting an identification parade is simply to confirm that the victim would be able to identify a person s/he had clearly seen in difficult circumstances; thereby ruling out a case of mistaken identity.’ 22. In this matter, the appellant confirmed in his testimony before the trial court that the complainant had met him and they had gotten acquainted to a point that they negotiated for employment, sex and money. The appellant was traced using the communication between him and the complainant which he admitted. In the circumstances, it is my view that the identification was only necessary for purposes of pointing out the appellant to the police. There was no possibility of a mistaken identity as the complainant could point out and recognise the assailant with or without the identification parade. It is therefore not necessary for me to go into the manner in which the parade was conducted as it is not material. 23. I now turn to the issue of whether the evidence produced by the prosecution was enough to support the prosecution’s case. The ingredients of an offence of robbery with violence are depriving the victim of their property, while the offender is armed with any dangerous or offensive weapon or instrument; or while he is in company with one or more other person or persons; or where, at or immediately before or immediately after the time of the robbery, he wounds beats, strikes or uses any other violence to any person. In Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR), the court held that; ‘Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence. 24. On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: a. The offender is armed with any dangerous or offensive weapon or instrument, or b. The offender is in the company of one or more other person or persons, or c. The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person.’ 25. The fact that the appellant and the complainant communicated and met on the 7th April 2021 is undisputed. According to the complainant, she reported the incident on the following day after consulting her cousin and aunt. She did not tell the court why she could not go to the police or hospital immediately after the incident. The complainant alleged that she called Safaricom to block her line but there was no evidence tendered to support that fact. The call log produced before the court as prosecution exhibit 7 covers up to 7-04-2021 and it is not clear whether the line was ever used again and with which handset. There was also no triangulation to show that the appellant used the stolen handset at any given time. In my view this would have been a key indicator although not the only evidence linking the appellant to the stolen handset. 26. It is notable at this juncture that the alleged missing mobile phone, charger, cash and bag were not recovered from the appellant. The appellant submits that the court erred when it applied the doctrine of recent possession. In my opinion, this doctrine was not even applicable because nothing stolen https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6540/eng@2026-05-15 5

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from or belonging to the complainant was recovered from the appellant. The only thing done in relation to the stolen phone is identification and tracing the appellant by use of call log showing that he communicated with the complainant. There is nothing showing that the appellant used the handset or the complainant’s line. The investigating officer did not link the stolen handset to the appellant’s possession. 27. It is also my finding that the prosecution did not sufficiently prove the ingredient of use of actual violence or threat to use actual violence or possession of dangerous weapon. The complainant alleged that the appellant was in possession of a kitchen knife and threatened to kill her. She also claimed that the appellant used actual violence by strangling and sexually abusing her. The appellant denied all this and as such the prosecution had a duty to prove them beyond any reasonable doubt. What was placed before the court were the complainant’s word against the appellant’s and reading through the judgment, I note that the trial court did not give reasons why it believed the complainant’s position more that the appellant’s. 28. The complainant claimed to have been hit, fell down and strangled. The medical documents produced especially the P3 form and report from Nairobi Women Hospital show that no injuries were suffered. Strangulation marks should at least have been noted or any evidence of a violent conduct. I would expect someone who has been robbed and injured to go to the hospital or police station without probing immediately after leaving the scene. In this regard, I find the complainant’s account on the attack inconsistent with her conduct and medical documents. 29. While making a finding that the prosecution had proved the charge of robbery with violence, the trial court stated as follows; ‘In our present case, the complainant is said to have been threatened using a knife by the assailant who stole her mobile phone make Techno F1, phone charger and cash Kshs 410/ =. During the incident, the complainant was assaulted by the assailant by strangling and raping her. 30. From the above stated facts, I find three ingredients of the offence of robbery with violence established. The same are listed hereunder; 1. The assailant robbed the complaint the items listed on the charge sheet, mobile phone make Techno F1, phone charger and cash Kshs 410/=. 2. The assailant threatened the complainant using an offensive weapon namely; kitchen knife. 3. The assailant used personal violence and raped and sexually assaulted the complainant, reference is made to the P3 form exhibit no. 4.’ 31. I find it materially contradictory for the court to have cited rape and sexual assault as one of the reasons he found the ingredients of robbery with violence proved yet he in the paragraphs that follow acquitted the appellant of the count of rape holding that there was no proof of injuries and penetration and that the complainant’s allegations on the same had not been corroborated. 32. In my analysis, the above quoted text form the judgment show that the trial court simply listed what the complaint had said without analyzing or considering the possibilities that the complaint could not have been telling the truth. Mere statements which are not accompanied by evidence like recovery of the weapon or the item stolen or at least proof of violence must be taken with caution especially where the other piece of evidence to some extent contradicts the complainant’s account of the events. Based on the above, I bear doubts in my mind that robbery leave alone with violence occurred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6540/eng@2026-05-15 6

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33. In its submissions, which I find interesting, the respondent has conceded that the circumstances of the robbery have not been established and asks the court to find an offence of stealing from a person contrary to Section 279(a) as read with Section 275 of the Penal Code was proved and convict the appellant of the same. I have already held that there is no proof that the appellant robbed the complainant of the items listed in the charge sheet and I decline this invitation. 34. The conclusion of the above analysis is that this appeal succeeds and considering that the appellant confirmed that he is serving sentences in criminal cases numbers E950 of 2021 and E951 of 2021, I proceed to issue the following orders; 1. The conviction and sentence dated 20th December 2022 in Mavoko Chief Magistrate’s Court criminal case number E958 of 2021 is hereby set aside and quashed. 2. The appellant is set free in respect of the said case only and for clarity, this order relates to the said specific case. Dated signed and delivered at Nairobi this 15th day of May 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. Judgment delivered in presence of the appellant and in absence of the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6540/eng@2026-05-15 7

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