James Ndeti Maeke v Republic

case of Oluoch v Republic [1985] KLR as was quoted with approval in Mwaka v Republic (Criminal Appeal E272 of 2023) [2025] KEHC 2747 (KLR) (Crim) (6 March 2025) (Judgment). 4. It was submitted that the Prosecution did not avail separate witnesses to prove to the court that the Appellant was armed with any weapon, that he robbed the complainant or that he indeed attacked the complainant in this matter. 5. Further to this, the evidence of the alleged stolen phone belonging to the complainant was too weak to support the charge. A receipt was produced before the trial court which lacked the serial number and/ or IMEI number of the alleged stolen phone to prove its authenticity. The allegedly stolen phone was also never recovered with the record showing that no attempt at recovering the same was ever done. It was submitted that these facts render the allegation that the Appellant robbed the complainant of his phone to be highly implausible. 6. The Appellant submitted that the Appellant was summoned the police station more than a year after the alleged robbery incident. He willingly and voluntarily availed himself to the police station without knowing the turmoil that lay ahead of him whereupon he was arrested. It is quite telling that the said arrest was done more than a year after the fact considering the gravity in law of the alleged offence. 7. It was submitted by the Appellant that the complainant’s evidence before the trial court was inconsistent and unsupported by independent corroboration. The mere allegations, unsupported by cogent evidence, cannot ground a conviction for an offence as grave as robbery with violence and we invite the court to hold as such. 8. That the fact that the Appellant was known to the complainant does not lessen the threshold to be reached in the instant case. The trial court was enjoined to thoroughly look at the evidence on record despite the fact that the Appellant was recognized by the complainant. 9. At the time of the alleged robbery, it was at night and there was not enough light for the Complainant to correctly identify the Appellant. Secondly, the fact that the Appellant was arrested an entire year after the alleged robbery was committed totally vitiates the Complainant’s testimony as to the identity of his alleged attacker. The Appellant invited this court to find as such. 10. The Appellant submitted that in line with the issues expounded herein above, the conviction was unsafe and as such the sentence issued was harsh and excessive in the circumstances. This court was invited to find merit in the instant appeal and proceed to quash the conviction of the trial court. The Respondent’s submissions. 11. The Respondent submitted that the trial court properly evaluated the evidence and came to the right conclusion. It was submitted that the prosecution’s case did not have any contradictions and inconsistences and even if they were there, they are minor and do not go to the root of the prosecution case hence this court should ignore them. The minor inconsistences (if any) were satisfactorily explained and this shows that the prosecution witnesses were truthful. Further the contradictions, discrepancies and inconsistences (if any) are not prejudicial to the Appellant. Reliance was placed on section 382 of the Criminal procedure Code and the case of Muli v Republic (Criminal Appeal No. E043 OF 2022) [2023] KEHC 20868 (KLR). 12. The Respondent submitted that in determining the identification of the Appellant, the trial court considered the length of time the witness had for seeing the perpetrator, the position from the Appellant and the quality of light as was reiterated in Mwaura v Republic (1987) KLR 645 and in Michael Nganga Kinyanjui v Republic [2014] eKLR where the Court of Appeal considered these cases https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7062/eng@2026-04-14 2

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and quoted Cleophas Otieno Wamunga vs Republic Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR). 13. The Respondent submitted that the complainant was injured and also robbed of items by the Appellant. He committed the act using actual force that injured the complainant. That the trial magistrate evaluated the evidence on the prosecution case and was proper in finding that the prosecution proved its case beyond reasonable doubt. The conviction was safe and proper. As regards the sentence imposed, the lawful sentence under the law for the offence of robbery with violence is death sentence. The trial court however did not indicate why it departed from the prescribed sentence by law for an offence of robbery with violence. The Respondent submitted that be that as it may, looking at the circumstances of the case, the 15 years sentence imposed by the trial court is sufficient and deterrent. This court was urged to confirm the same and dismiss the appeal which lacks merit. Analysis and Determination 14. This being the first appellate Court, its duty is well spelt out namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion but at all times bearing in mind that it did not see the witnesses testify (See Okeno v Republic [1972] EA.32). 15. I have perused the trial court’s record, the petition of appeal, written submissions and authorities relied upon by both parties. The broad issue arising herein for my determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt. 16. As to whether the prosecution proved its case against the Appellant before the trial court to the required standard, the offence of robbery with violence is a creation of Section 296(2) of the Penal Code. Section 296 (2) of the Penal Code provides that: “ 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 before or immediately after the time of the robbery he wounds, strikes or uses any other personal violence to any person he shall be sentenced to death.” 17. The offence is made up of two parts. The first part is the robbery and the other part is the aspect of violence. 18. In Jeremiah Oloo Odira V Republic [2018] eKLR Criminal Appeal No. 7 OF 2018 (Consolidated with High Court Criminal Petition No. 16 Of 2018) A.C Mrima J stated that: “ From the foregone legal provisions, it can be seen that the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the violence. 19. 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. 20. 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: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7062/eng@2026-04-14 3

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21. 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. Thus, to prove an offence of robbery with violence one has to prove robbery and violence and thus prove: a. theft b. use of or threat to use actual violence c. identity of the perpetrator a. Theft 22. . PW1 the complainant, Patrick Musyoka Katunyo testified that he lost his phone worth Kshs.1,100/= and produced in evidence a receipt dated 20/5/2020 as PMFI-1(PExt.1). He testified that he also lost money. PW2, Bibiana Wanza Muasa, the wife to the complainant testified that the compliant lost a phone and Kshs.5,000/=. She stated that none of the items were recovered. She was shocked because they lived well with the Appellant. I have carefully and keenly perused the receipt dated 20/5/2020 produced as (PExt.1) issued by Kwa Mwende Electronics which is purported to prove that the alleged stolen phone herein was purchased from the said trader, however, I note from the said receipt that the said trader only deals in mobile phone accessories among other dealings but does not deal mobile phone selling. Clearly, it is my considered view that the receipt must have been intentionally well crafted to hoodwink the trial court into believing that the mobile phone indeed existed and to favour the complainant’s allegation of the theft of the same by the Appellant. The prosecution through the complainant would have been expected to go a step further to give or state the complainant’s registered mobile phone number and even obtained a call log statement for the same to prove that indeed the complainant had a mobile phone prior to and at the time of the incident. 23. With regard to the allegation of stolen money, PW1 only testified that he also lost money but did not state how much money he lost whereas PW2, Bibiana Wanza Muasa, the wife to the complainant testified that the compliant lost a phone and Kshs.5,000/=, however she did not lead evidence to support this. On the above analysis on the ingredient of theft, I am not convinced that the prosecution proved beyond reasonable doubt that the items (mobile phone and money) were stolen during the incident. b. Use of or threat to use actual violence 24. PW1 testified that the he got a call from one Mutuku who requested him to take him to Athi River. PW1 had a motor cycle KMCP 334P and since the said Mutuku is his relative and he knew him, he decided to heed to his call and took him to Athi River. They engaged in a conversation and when they got to the river which has 2 bridges, PW1 brightened his lights and saw two other men, one James Ndeti and Elizabeth. The accused told him to drop him there. When he alighted, he strangled PW1and the motorbike fell. Ndeti removed PW1’s phone and money while the accused stepped on him. PW1 was lying chest down. The three of them attacked him using fists, blows. PW1 asked Ndeti (the Appellant) why he was watching as he was being attacked....PW1 managed to jump into a trench with water till his home. They followed him till home. All this time Elizabeth Nthenya was left behind. They then went... PW1 state that he was injured in the process and went to Wamunyu hospital. In cross -examination, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7062/eng@2026-04-14 4

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PW1 stated that the whole incident took about 30 minutes and he did not scream. Mutuku strangled him and started beating him NOT Ndeti. 25. On the foregoing, even without considering the evidence of PW3 Joan Syombua Mutie a clinical officer stationed at Wamunyu Health Centre on the injuries and treatment given to the complainant herein, PW1, the complainant himself testified that Mutuku whom he referred to as the accused asked him to take him to Athi River and when they reached the river, the said accused (Mutuku) told him to drop him there. When he alighted, Mutuku strangled PW1 and the motorbike fell. Ndeti (Appellant) removed PW1’s phone and money while the accused (Mutuku) stepped on him. PW1 was lying chest down (facing down). The three of them attacked him using fists, blows. PW1 testified that he asked Ndeti (the Appellant) why he was watching as he was being attacked. PW1 managed to jump into a trench with water till his home. They followed him till home. All this time Elizabeth Nthenya was left behind. They then went... PW1 state that he was injured in the process and went to Wamunyu hospital. 25. The fact that PW1, the complainant alleged to have been attacked by fists and blows which are not dangerous and offensive weapons or instruments that are essential elements of the offence of robbery with violence and that he asked the Appellant why he was watching as he was being attacked, that the complainant jumped into a trench with water till his home which could have caused him the injuries if any and that Mutuku strangled him and started beating him but NOT Ndeti (the Appellant) it is without doubt that the Appellant did not use actual violence on the complainant during the incident that occasioned the complainant to suffer injuries. 25. On this, again, the prosecution did not prove to the required standard the ingredient of use of or threat to use actual violence on the complainant by the Appellant in the circumstances. c. Identity of the perpetrator 28. The Appellant was summoned the police station more than a year after the alleged robbery incident. He willingly and voluntarily availed himself to the police station without knowing the turmoil that lay ahead of him whereupon he was arrested and charged. It is quite telling that the said arrest was done more than a year after the fact considering the gravity in law of the alleged offence. 29. PW1 testified that the other two persons who were with the Appellant at the time of the incident were not arrested but are just at home. The Appellant who was before court was his friend and had even brought his child to his place for a week. That he carried the accused (Mutuku) who is well known to him and who was still in his home at the time of the trial, the police had told him they would call the Mutuku. He testified that the incident happened at about 11.30pm and the moon was not out. He did not see any lorry but he heard people talking. The lorry did not have lights. He stated that he identified Ndeti (the Appellant) and the others with his motor cycle lights. 29. It is not disputed that the Appellant was known to the Complainant, however the fact that the Appellant was known to the Complainant does not lessen the threshold of identification to be reached in the instant case. 29. In Cleophas Otieno Wamunga v Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) (22 June 1989) (Judgment) where the court determined thus; “ This need for caution was also reiterated by the Court of Appeal for Eastern Africa in the case of Abdallah Bin Wendo v R 20 EACA 166 at page 168 thus: “Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7062/eng@2026-04-14 5

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it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” [Emphasis ours] 29. This requirement for greater caution in dealing with recognition evidence was set forth in the case of Baraza v Republic (Criminal Appeal 378 of 2019) [2023] KECA 349 (KLR) (31 March 2023) (Judgment) where the court determined thus; “ As can be deduced from the case of Cleophas Otieno Wamunga (supra), whenever a case against an appellant is dependent on the evidence of identification, courts must exercise caution and care to avoid a miscarriage of justice. The respondent has urged us to find that there was no need for the identification parades as the appellant had been positively identified prior to his arrest. In response to this submission, and without prejudice to what we have stated in the preceding paragraph, we wish point out that in assessing whether the identification during the commission of the offence is sufficient, the court ought to engage in a dual inquiry. The first inquiry relates to the light used for identification, namely, the source of light, the intensity of the light, duration within which the light was available and the time the ordeal took, as well as any other intervening factor. The second inquiry is as to whether the complainant offered an initial description of the assailant during the first report or to the first contact person after the incident. This second line of inquiry serves to ensure that the complainant indeed identified certain peculiar features of an accused during the incident thereby backing his or her evidence that the circumstances favoured a positive identification. [Emphasis ours] 29. In the case of ODHIAMBO –vs- REPUBLIC [2002] 1 KLR 241 – Chunga CJ, Lakha and Ole Keiuwa JJA held”“ 1. Courts should receive evidence on identification with great circumspection particularly where circumstances are difficult and do not favour accurate identification. 2. Where evidence of identification rests on a single witness and circumstances of identification are known to be difficult, what is needed is other evidence, either direct or circumstantial, pointing to the guilt of the accused person from which, the court may reasonably conclude that identification is accurate and free from the possibility of error”, 34. Based on the above cited cases, the facts before the trial court failed to meet all the elements proper identification. At the time of the alleged robbery, it was at night and there was not enough light for the complainant to correctly identify the Appellant. The prosecution did not lead any evidence to show the intensity of the complainant’s motor cycle lights at the time of the incident. Secondly, the fact that the Appellant was summoned to the police station and arrested an entire year after the alleged robbery was committed totally vitiates the complainant’s testimony as to the identity of his alleged attacker. 35. Therefore, this court finds that the prosecution failed to prove the offence of robbery with violence against the Appellant before the trial court to the required standard of beyond reasonable doubt. 36. In the final analysis, I find and hold that the Appellant’s conviction was not safe and therefore allow the appeal. On the sentence, the same is at the sole discretion of the trial court and there being no cross https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7062/eng@2026-04-14 6

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appeal thereof, I find that the same is not excessive and harsh noting that the sentence available include up to death sentence. I would not have interfered with the same had I dismissed the appeal. 37. The upshot is that the Appellant shall forthwith be set at liberty unless otherwise lawfully held. 38. Having been released on bail pending appeal, the cash bail deposited herein to be released to the Appellant. 39. This appeal file is closed. It is so ordered. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS THIS 14TH APRIL 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 14TH APRIL 2026 In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7062/eng@2026-04-14 7

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