Wilfred Onkundi Omatunda v Republic

conducted as per the stipulations of National Police Standing Orders (NPSO), therefore acting in prejudice of the appellant. II. That the learned trial Magistrate erred in both law and fact by failing to note that the prosecution did not establish ingredients for the offence of robbery with violence as provided under section 296(2) of the Penal Code against the appellant. III. That the learned trial Magistrate erred in both law and fact by not considering the cogent defence case of the appellant which reasonably exonerated him from the commission on any ill-fated offence. IV. That the death sentence imposed on the appellant was harsh and excessive oppressive and unfair in light of the weak, shoddy, doubtful and malicious evidence tendered by the prosecution. 4. The appeal was canvassed through written submissions. By his undated submissions in support of the appeal, the Appellant contended concerning the issue of identification that the prosecution failed to discharge the burden of proof to the required standard. On the authority of Okethi Okale & Others v Republic [1965] E.A. 557, where the Court emphasized that a conviction must be based on the weight of actual evidence and not on conjecture or attractive reasoning and Kariuki Njiru & 7 Others v Republic, Criminal Appeal No. 6 of 2001, for the proposition that identification evidence must be carefully scrutinized and must be free from the possibility of error. In a similar vein, he relied on Francis Kariuki Njiru & Others v Republic [2001] eKLR, where the Court held that a crucial factor in testing identification is whether the witness gave a description of the attacker at the earliest opportunity. The Appellant argues that no such prior description was given in the instant case, which rendered the identification unreliable. 5. The Appellant cited the trial court’s dismissal of the rape charge, as casting doubt on the credibility of the identification evidence of the complainant. In addition, the DNA evidence, which did not connect him with the rape. Therefore, submitting that the foregoing demonstrates a clear case of mistaken identity. 6. On whether the ingredients of robbery with violence were established, the Appellant submitted that the prosecution failed to prove any of the elements of the offence under Section 296(2) of the Penal Code. Arguing that no evidence of recovery of any alleged weapon, that he acted in the company of others, or of the use of violence against the complainant was tendered, he asserted that his arrest was based on suspicion. He contended that the trial court failed to consider his defence, which was cogent and capable of exonerating him. Thus, concluding that the prosecution failed to displace the presumption of innocence. 7. Attacking the death sentence, the Appellant submitted that the penalty imposed was harsh, excessive and disproportionate in light of the circumstances of the case. Here citing Fatuma Hassan Salo v Republic (2006) eKLR, on the proper exercise of judicial discretion in sentencing. He further invoked constitutional principles under Article 10 of the Constitution and the Sentencing Policy Guidelines, arguing that sentencing should be proportionate and geared towards rehabilitation. 8. In conclusion, the Appellant asserted that the prosecution case was not proved beyond reasonable doubt, as it was founded on weak and inconsistent identification evidence unsupported by forensic proof. And arguing that his right to a fair trial under Article 50(2)(a) of the Constitution was violated, he urged the Court to allow the appeal, quash the conviction, set aside the sentence, and order his release unless otherwise lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 2

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9. The Respondent opposed the appeal by their submissions dated 31st March, 2025. They took the position that the Appellant was properly charged with robbery with violence contrary to Section 296(2) of the Penal Code and, upon full trial, was properly convicted and sentenced to death, while the second charge of rape was dismissed. 10. The Respondent posited that the first count against the Appellant was proved beyond reasonable doubt and that the appeal lacks merit. Setting out the ingredients of robbery with violence as settled in Oluoch v Republic [1985] KLR, where the Court of Appeal held that the offence is established where the offender is armed with a dangerous or offensive weapon, or is in the company of one or more persons, or uses or threatens to use personal violence. The Respondent asserted on the authority of Miller v Minister of Pensions [1942] AC, that proof beyond reasonable doubt does not mean proof beyond all doubt but requires a high degree of probability. The case of Bakare v State (1985) 2 NWLR, where it was held that proof beyond reasonable doubt does not demand absolute certainty but rather cogent and compelling evidence sufficient to displace the presumption of innocence was cited to buttress the foregoing. 11. On identification, the Respondent submitted that the Appellant was positively and reliably identified by the complainant. Further arguing that identification by a single witness is admissible provided it is free from error, reliance being placed on Wamunga v Republic [1989] KLR 424. To the effect that while such evidence can be relied upon where the circumstances favour a correct identification, the evidence must be carefully scrutinized. And contending that in the present case, the complainant had ample opportunity to observe the attacker during the incident, including moving with him from one room to another and switching on lights, and was able to identify him later at a properly conducted identification parade. The Respondent asserted that there was no irregularity or suggestiveness in the parade and that the identification was consistent and reliable. 12. Regarding the DNA evidence, the Respondent submitted that the failure of a DNA match did not weaken the prosecution case. Citing Karanja v Republic [2004] 2 KLR 140, where the Court of Appeal held that lack of forensic evidence does not necessarily render a conviction unsafe, particularly where there is credible and consistent eyewitness testimony. It was argued that the complainant’s evidence, coupled with the identification parade and surrounding circumstances, was sufficient to sustain the conviction despite the negative DNA results. 13. On alleged inconsistencies, the Respondent contended that the prosecution case was cogent and consistent, and any discrepancies were not material. In support of this position, reliance was placed on Richard Munene v Republic [2018] eKLR, where the Court of Appeal held that not every inconsistency is fatal and only inconsistencies that go to the root of the case and create reasonable doubt can vitiate a conviction. The Respondent maintained that no such material contradictions arose in the present case. 14. Regarding the sentence, the Respondent submitted that the offence was serious and aggravated, having been committed at night in the complainant’s home, and involving violence and theft. Relying on Njiru v Republic [1987] KLR 19, where the Court emphasized the gravity of robbery with violence and the need for courts to impose appropriate sentences reflecting the seriousness of the offence, the prosecution asserted that the sentence imposed was justified and proportionate. 15. In summation, the Respondent submitted that the prosecution proved its case beyond reasonable doubt, in that the identification of the Appellant was positive and reliable, and the absence of DNA evidence did not diminish the strength of the case. The Court was urged to find that the conviction was safe, dismiss the appeal, and uphold both the conviction and the sentence imposed by the trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 3

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Analysis and Determination 16. The duty of this court on a first appeal, is to re- evaluate, the evidence adduced at the trial court with a view to arriving at its own independent conclusions. These principles were enunciated by the East African Court of Appeal in the case of Pandya v Republic [1957] EA 336 pg 37: “ On first appeal from a conviction by a judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the materials before the judge or magistrate with such other materials at it may have decided to admit. The appellant court must then make up its mind does not disregard the judgement appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on a manner and demeanour, the appellate court must be guided by the impression made on the judge or magistrate who saw the witnesses but there may be other circumstances, quite apart from manner and demeanour which may warrant a court in differing from the judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen……” 17. The prosecution evidence in the lower court was that the complainant JN (PW1) was on the night of 29th September 2022, at her residence at Rankau, near Ongata Rongai with her young children. Her husband MMK (PW2) was away. She was sleeping in her bedroom upstairs, and sometime after midnight, she got up to go to the kitchen to drink water. She turned on the lights in the kitchen, and noting that the rear door was open, made to close it. However, a man immediately entered the kitchen, and accosted her. He was a tall slender man and had not covered his face and was armed with a mop. He ordered her to keep quiet when she screamed, before attacking her with the stick or handle of the mop and following her as she retreated into the sitting room. He assaulted her by hitting her on the head and trussed her hands with a piece of electric cable while demanding money. When she said she had only Kes.1700/- he went to her room upstairs and brought her handbag and took her phone, then attempted to make a withdrawal. 18. He then raped her the first time and went to the kitchen and on return, raped her again, after which he ordered her to accompany him upstairs. When she said she could not walk, he carried her to a bed in a room downstairs, and expressed the intention to sodomise her. Seemingly changing his mind, he covered her with a sheet and left the room. From the room, she heard a gas cylinder being moved, followed by three trips by a motorcycle to the home. When the movements ceased, she went to the house of her brother-in-law who lived close by and eventually neighbours, including PMK (PW3) who had been alerted came to the home. 19. A report was made to police at Metro Patrol Base and the complainant escorted to the Nairobi Women Hospital where she was treated. According to PW1, PW2 and IP Irine Violet Achieng(PW7 ) of Kitengela Police Station two gas cylinders, a Dell laptop, speakers, Shs. 1000/-, radio, toys and a cell phone were stolen from the house while the complainant had sustained injuries to her head and face in the robbery. 20. The scene was visited by among others PC Bernard Kemei (PW4), CPl. Damaris Mwamo (PW5), both based at Metro Patrol Base and PW7. It appeared that entry into the complainant’s house was gained by breaking a windowpane in the rear door and forcing the door open. The latter witness described the complainant’s injuries on the head and face which were swollen. John Njuguna (PW8), a clinician at the Nairobi Women’s Hospital produced the treatment notes, PRC form and P3 form documenting https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 4

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the complainant’s injuries as P.Exh. 1A,1B and 2 respectively, while PW7 produced the government analyst’s report dated 2nd October 2023 (P.Exh. 6) in respect of DNA samples taken from PW1 and the Appellant. Principally showing that while semen stains were detected in the high vaginal swab (HVS) taken from the complainant, the DNA profile generated therefrom did not match with the DNA profile generated from the Appellant’s urethral swab and blood sample. 21. On 10th October 2022 IP Alexander Mwai (PW6) of Kitengela Police Station conducted the identification parade in respect of the Appellant who had allegedly been arrested in connection with another offence committed in the area where the complainant lived, and who consented to participating in the parade. PW1 though distraught identified the Appellant who was subsequently charged. 22. Upon being placed on his defence, the Appellant elected to give an unsworn statement and did not call witnesses. He stated that he was a resident of Kandisi in Ongata Rongai and was a mason. On 8th October 2022, he went about his usual work and finished at around 6:10p.m. Thereafter, he was invited by a friend known as Wycliff Mogaka, to meet him at Oasis Club. They met, ate, and drank while discussing work at a proposed construction project. 23. He testified that at about 10:30p.m., they both left the club and, while walking in a dark area, they were suddenly confronted by individuals who shone torches at them and ordered them to sit down. He initially thought they were robbers but soon realized they were police officers. The officers questioned Wycliff before both men were handcuffed and arrested. The Appellant stated that he was not informed of the reason for his arrest and was assaulted by the officers before being taken to the police station and placed in the cells. 24. The Appellant further stated that on the following day he was presented before the Officer Commanding Station (OCS), to whom he complained that his rights had been violated. He was removed again from the cells on 13.10.2022 and saw a lady and two men and a police officer asked him (Appellant) if he knew the duo, and upon answering in the negative, he was led to an identification parade and placed among other men. That presently, the said lady came and touched him before he was asked to sign a document and returned to the cells. On the following day, his samples were collected at the Nairobi Women’s Hospital, and on 19.10.2022, he and Wycliff were jointly charged with the offence of stealing. Shortly after he was also separately charged with the two counts herein which he denied. 25. The offence of robbery with violence is created under Sections 295 and 296(2) of the Penal Code as follows: “ 295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. 296 (2). 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 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 5

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26. In Johana Ndungu v Republic [1996] KECA 187 (KLR) the Court of Appeal held as follows: “ 35. 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 before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery is presupposed in the three sets of circumstances prescribed in S.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section: 1. If the offender is armed with any dangerous or offensive weapon or instrument, or 2. If he is in company with one or more other person or persons, or 3. If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person. Analyzing the first set of circumstances, the essential ingredient apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is being armed with a dangerous or offensive weapon. No other fact needs to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in section 295 of the Penal Code, the offender was armed in the manner afore described, then he is guilty of the offence under sub-section (2) and it is mandatory for the Court to so Convict him. In the same manner, in the second set of circumstances if it is shown and accepted by the Court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The Court is not required to look for the presence of either of the other two set of circumstances. With regard to the third set of circumstances, there is no mention of the offender being armed or being in company with others. The Court is not required to look for the presence of either of these two ingredients. If the Court finds that or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (maybe a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.” 36. From the above, it is clear that the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: i. The offender is armed with any dangerous or offensive weapon or instrument, or ii. The offender is in the company of one or more other person or persons, or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 6

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iii. 37. 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. It should however be noted that any one of the above elements, if proved, is sufficient to find a conviction. That is to say, the three elements of the offence are to be read disjunctively and not conjunctively. See Dima Denge Dima and others v Republic [2013] eKLR’’. 27. From the evidence tendered at the trial, it was established that before, during and immediately after the time of the offence in which household goods were stolen, actual violence was used on the complainant, who was indeed injured as documented in the medical evidence tendered through PW8. These facts bring the case within the ingredient (iii) hereinabove. As in the lower court, this appeal turns primarily on the question of identification of the robber. 28. The conviction of the Appellant was solely founded on the identification by a single witness, PW1. It is trite that evidence of visual identification, particularly by a single witness under difficult circumstances, must be considered with great care and caution to avoid the risk of mistaken identity. In Joseph Muchangi Nyaga & Anor. -Vs- Republic [2013] eKLR the Court of Appeal observed that:“ Evidence of visual identification should always be approached with great care and with caution (see Waithaka Chege -Vs- Republic [1979] KLR 27. Greater care should be exercised where the conditions for a favourable identification are poor (Gikonyo Karuma & Another Vs- Republic [1980] KLR 23. Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla bin Wendo & Another -Vs- Republic, [1953] 20 EACA 166; Wamunga -Vs- Republic, [1989] KLR 42; and Maitanyi -Vs- Republic, 1986 KLR 198). Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him.” See also Machera v Republic [2026] KECA 799 (KLR) 29. According to PW1 there was light in the house during her ordeal and the sole robber whom she described as tall and slender was not masked. From her testimony, PW1 was in the company of the intruder for probably over an hour in adequate light, spoke to him while moving from one room to the other, and came close to him during the two incidents of rape. However, apart from describing the general physique of the robber, PW1 did not describe any features relating to his facial appearance, manner of dressing, voice, or other distinct features. More significantly, no distinctive feature of the assailant was given before the trial court or police before the identification parade conducted by PW6. 30. The detail “tall and slender” in describing a suspect is essentially nondescript and could well apply to a wide range of persons. Courts have consistently held that such broad descriptors, without more distinguishing features (such as facial marks, clothing, voice, or unique characteristics), carry limited probative value. 31. The Court of Appeal, when faced with a comparable situation in Bakari Rashid vs Republic (2016) KECA (KLR) had this to say: Of course, a conviction as in this case resting entirely on identification by a single witness should cause concern. The offence may well have been committed in broad daylight but https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 7

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it is still possible for a witness in those circumstances to be mistaken in identifying the perpetrators depending on the conditions obtaining. So that a court acting on such evidence to found a conviction must proceed with caution and circumspection. See Roria v Republic [1967] EA 583 and R v Turnbull [1976] 3 ALL ER 54. In convicting the appellant, the trial court observed: “ ……I know the dangers of convicting a person on the evidence of a single witness in identification and I have warned myself already, but the circumstances in this case and especially the evidence of PW2 that she saw the accused doing the robbery and that she identified him at the parade carries some weight of truth….” As already stated elsewhere in this judgment, the basis for PW2 picking out the appellant from the identification parade was his swollen mouth. However, the first report she gave to PW3 and PW4 regarding the robbery and her purported identification of the appellant did not allude to one of the robbers having a swollen mouth. It is a fact therefore that PW2 did not give the police officers a description of the appellant in her first report that was recorded in the Occurrence Book. Further, it is not clear how PW2 would have kept the appellant under observation for a period of 30 minutes or thereabouts but still fail to give the police the description of the appellant with such manifest feature if she infact was able to see him sufficiently to be able to identify him. It is instructive that the alleged robbery took place on 20th August, 2009. Hardly 30 minutes thereafter the incident was reported at Likoni Police Station. Within such short time, could PW2 have failed to describe such feature to the police? In Ajode v R [2004] 2 KLR 81, this Court held that before an identification parade is held, a witness should be asked to give the description of the person sought to be identified. Ideally, that advance description of the person ought to be in writing and the same, together with parade forms availed to the trial court so that it can be compared with the description given of the accused. This was not the case here. That notwithstanding, PW2 claimed to have picked out the appellant on the basis of his swollen mouth. It is this evidence which was adopted and relied on by the trial court and confirmed by the first appellate court to found a conviction. However, there is no evidence that PW2 had seen the appellant with the swollen mouth during the incident….’’. 32. The Court of Appeal in Bakari Rashid Vs R (supra) concluded by stating that: We are in the circumstances satisfied that there was no identification of the appellant at the scene as such identification, could not have been free from possibility of error and further since we have explained that the identification parade was not properly conducted for want of description of the appellant in the complainant’s first report, and the manner in which the identification parade was carried out, the subsequent identification of the appellant in court can only be dock identification. It is trite law that dock identification is generally worthless, and a court should not place much reliance on it’’. 33. Similarly in this case, PW1 did not know the Appellant before the incident in question, and despite spending at least an hour with her assailant whom she asserted had no facial covering, did not in her first report give any unique or distinct description of him to police beyond stating that he was tall and slender. There is no evidence that such description of his distinctive features was required of her by police prior to attending the identification parade and/or recorded in the occurrence book, yet the essence of an identification parade is to test a witness's alleged visual identification of a suspect during https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 8

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the commission of a crime. Thus, rendering the parade exercise flawed and PW1’s identification of the Appellant during the trial, merely dock identification. And owing to the circumstances in which the offence occurred, it is hard to say that the identification was free from error. 34. But there is more cause for concern in this case. The complainant stated that she had been raped twice by her assailant on the material night. The trial court finding that penetration was not proved acquitted the Appellant on the rape charges. This was because DNA results contained in the report produced as P.Exh. 6 confirmed that the DNA profile generated from the semen stain found in complainant’s HVS did not match the DNA profile derived from the Appellant’s urethral swab and blood, thereby excluding him as the source of the semen stain. On her part, PW1 maintained that,” I only saw one person in my house and he is the one who raped me.” 35. The significance of the DNA results here is that the alleged robbery and rape occurred during the same unbroken transaction. Therefore, raising further doubt regarding the reliability of PW1’s identification of the Appellant and the possibility of mistaken identity. Moreover, there was no direct evidence tendered at the trial on the circumstances of the Appellant’s arrest, despite allegations being made by PW7 that he was arrested following an offence committed in PW1’s neighbourhood a few days after the incident involving PW1. None of the victims of, or police investigating the said other offence testified in the trial, and it appears that PW7 randomly decided to conduct the identification parade involving the complainant herein after the arrest. 36. Upon a careful re-evaluation of the evidence on record, the Court is not satisfied that the prosecution proved its case against the Appellant beyond reasonable doubt. The court is not assured that the identification of the Appellant was not free from the possibility of error, and the resultant doubt should have been resolved in the Appellant’s favour. Had the trial court addressed its mind to these matters, it would have returned a finding that the identification evidence connecting the Appellant with the offence in the first count was fraught with reasonable doubt. 37. No doubt PW1 was subjected to a most harrowing ordeal at the hands of the sexual assailant and robber who intruded into her house on the material night, and the court is not without sympathy for her. However, it is the duty of the court to decide cases on the basis of the law and facts, and in our jurisdiction the legal standard of proof in criminal cases is beyond reasonable doubt, which was not met in this case, owing mainly to the poor quality of investigations conducted by the police. 38. In the result, the conviction against the Appellant is unsafe and cannot be allowed to stand. Accordingly, the appeal is allowed, and the conviction for the offence of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code is hereby quashed. Consequently, the death sentence is set aside, and unless otherwise lawfully held, the Appellant shall be set at liberty. DELIVERED AND SIGNED ELECRONICALLY AT KAJIADO ON THIS 14TH DAY OF MAY 2026 C.MEOLI JUDGE In the presence of: For the State: Ms. Halima Appellant: present C/A: Lepatei https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6600/eng@2026-05-14 9

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