Daniel Wambua Nzioka v Republic

kept hitting him. He stated that the passenger alighted and went and told his son who came to the scene and took him to hospital. He had lost consciousness by then and was informed of this once he regained consciousness in South B hospital in Nairobi. He referred to the summary discharge. He also stated that he had some money around Kshs.40,000/= that he lost from the sale of his livestock. He stated that once a police report was made, he was issued with a P3 Form (PMFI.2). He stated that he knew the two accused persons since they were children and knows them very well as his farm neighbours theirs. 4. On cross examination by Mr. Muoki defence counsel, he stated that his brother Muema told him he had reported the matter the following day. He maintained that the accused persons were his neighbours and they had had no issues. He stated that he had an issue in a bar with the 1st accused/Appellant but he did not beat him. The 1st accused/Appellant tried to beat him at home in 2017 when he was alone but the 1st accused/Appellant was beaten and taken by the brothers to Kenyatta hospital. This was in self defence. He stated that he hit the 1st accused with a stone he had come with. He stated that he called the Appellant/1st accused’s brother to establish what issue the 1st accused/Appellant had with him and the 1st accused /Appellant promised to revenge. He stated that he regained consciousness at Nairobi South B hospital, he was assaulted at 7.30pm at Kikule at Kwa Njenga on the road. He was from the bar at the market. The road was deserted. The accused were ahead of him and each had a motor cycle and one had a pillion passenger. It was at night but he could see with the lights of his motor cycle. He stated that the 1st accused/Appellant was in front while the 2nd accused circled him from behind. His witness statement was recorded from the hospital and he signed it. He could not recall whether the police read the statement to him. He admitted not to fully understand how to read. He had not fully recovered hence he could have confused during the statement taking. He stated that even at the time of testifying he was not fully healed and couldn’t explain properly since he was still unwell. 5. In re-examination, he stated that his health had not improved but he was speaking the truth. That when his statement was taken, he was still unwell. He asked the trial court to consider hie testimony on oath in court. 6. On 21/11/2029, the record shows the accused persons informed the trial court that they were waiting for their advocate, however, the trial court advised them that the reason given was not enough as that was the same reason given last time (which reason was not recorded) nevertheless, the hearing proceeded. The Appellant does not seem to have an issue with the same on this appeal. 7. PW2-Charles Muema Mbatha testified that on 29/4/2018, he was at home when he received a call from Stephen Mbatha that Moses Mbatha had been found in a river in a bad shape. He got a car and together with friends they rushed him to Ithanga hospital for first aid. They then reported at Ndithini police post aid that on the material day of the 19.4.18 he was called and informed that the complainant was lying at the river and that he was in a bad shape. He rushed to the scene together with friends and took him to a hospital for first aid. He was in bad shape, could not talk and bleeding profusely. The following day they took him to Thika hospital. 8. He was unconscious and only regained consciousness after three days. He the told the witness that he was attacked by two boda boda riders who hit him and lost consciousness. They also stole from him Kshs.40,000/= that he had during the attack. 9. On cross examination by the Appellant, this witness stated that he was first told by Moses what happened. He did not name the Appellant. Moses only told him two young men had attacked him. 10. PW3-Agnes Nzila was the complainant's wife. She stated that on the material day of the 19.4.2018 she was called by one of her sons and told her that the complainant had been badly injured. She rushed to the scene and found him bleeding profusely. He was badly injured and could not speak. This witness together with Charles and her son Stephen Mbatha rushed the complainant to hospital. When the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 2

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complainant regained consciousness, he told her that while on his way home from the market he was attacked by Wambua Nzioka and Mutuku’s son. 11. On cross examination by the Appellant, PW3 stated that she only testified to what she saw and was told. There was no re-examination. 12. PW4- Stephen Mbatha Maithya stated that on the 19.4.2018 he was at home when a boy called Nzioka Ndii rushed to his home and told him that he had found his father (complainant) being killed by Daniel Wambua and Nzioka Mutiso. He went and found his father down near the bridge. He was the first person at the scene together with the boy who had alerted him. He was lying down in dire condition. He was bleeding. He kept on saying 'Wambua why do u want to kill me?' He made calls and people came to their rescue. When he reached the scene, he found the Appellant leaving, Nzioka was absent. His father (complainant) was seated. He didn’t know how Wambua was arrested. The quarrel started in a bar. They had prior differences. 13. On cross examination by the Appellant, this witness stated that Nzioka Ndii was going home when he saw the Appellant. There was no re-examination. 14. PW5-Brian Musyoka was the clinician. He stated that the complainant went to Matuu level 4 hospital on the 19.4.2018. He had a history of assault on the same day at 7.30 pm by two people known to him. He had a deep cut wound on the scalp. The lower lip was swollen- There was a loss of teeth. Approximate age of the injury was 3 weeks. Sharp and blunt objects were used. Degree was maim. He produced in court a P3 form and treatment notes as exhibits. On cross examination by the Appellant, he stated that the patient had a cut. 15. PW6-No.63xxx Corporal John Nganga was the investigating officer. His evidence was that the complainant's brother and wife made a report of this offence at Ndithini police station on the 20.4.2018 that the complainant had been attacked the previous night at 9pm by Wambua and Mutuku on the way home. They beat him and took his money. At that time the complainant was admitted in the hospital at Ithaga. He recorded the OB and went with them to the hospital. 16. The investigating officer stated that he found the complainant in the hospital and in pain. He told him that Wambua and Mutuku had beaten him and stolen his Kshs.40,000/=. On the 23.4.2018 the accused persons were arrested. On the 25.4.2018 he visited the complainant at a hospital in South B and recorded his statement. 17. The complainant explained to him that the 19.4.2018 he was from Ekalakala Market headed home on a motorcycle. At Ngila river he met the Appellant and one Mutuku each having a motorcycle. They came from the opposite side and blocked him. They used pangas and rungus they had to beat him on the head; lower jaw removed 8 teeth and hit him on the right ribs. On 5.5.2028 when the complainant was discharged from hospital, he filled for him the P3 Form. It is the in-charge Masinga who arrested them. 18. On cross examination by the Appellant, the Investigating Officer stated that the complainant identified the Appellant using lights from his motorcycle. He saw the accused well, further he used to be a football coach where the accused were players and he therefore knew them. That the complainant said the Appellant used pangas and rungus. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 3

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Defence case 19. DWI was the Appellant. He denied the offence. His evidence was that he wasn’t at the scene. On the material day he left Kikule market at 2pm and went home. He also owns a motor bike and he had carried his wife on the motorcycle. He stated that those who wrote in their statements that they saw him did not testify in court. Only the complaint’s wife, son and brother testified. 20. At conclusion of the trial, the trial Magistrate, in a judgement delivered on 7th February 2024 found the Appellant guilty, convicted and sentenced him to 30 years imprisonment. 21. Being dissatisfied with the conviction and sentence, the Appellant filed the instant appeal vide an undated Petition of Appeal raising nine (9) grounds of appeal both on conviction and sentence. 22. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 21st December 2024 while the Respondent’s submissions are dated 31st October 2025. The Appellant’s submissions. 23. The Appellant submitted that the prosecution failed to prove that theft occurred, which is a key ingredient in the offence of robbery with violence, reliance was placed in the case of Eric Otieno Arum v Republic KSM C/ Criminal Appeal No. 85 of 2005 [2006] eKLR. Also cited was the Court of Appeal in Oluoch V Republic [1985] KUR which set out the essential elements of the offence of robbery with violence. 24. It was further submitted that from the judgment and proceedings, the complainant and the witnesses, none of them mentioned the weapons used by the Appellant during the alleged robbery. The complainant (PW1) at page 6 of the record of appeal states that he was held by the legs by the 1st accused while the 2nd Accused person beat him; the complainant never said the accused person used weapons, and none of the prosecution witnesses corroborates the complainant being attacked by the accused persons with a weapon (Pangas and rungus). At page 7 of the record of appeal, PW4 (clinician) states that he examined the accused person on 18.4.2018, while the alleged robbery took place on 19.4.2018. The complainant never stated that the accused used any weapon on him, except for throwing a stone at him. 25. That the prosecution did not prove beyond a reasonable doubt that the Appellant was with one or more persons. The prosecution failed to call a key witness to the alleged robbery, who saw the complainant being attacked by the accused. The complainant, on the alleged day of the incident, on his way home he had a pillion passenger, who went to inform the rest of the witnesses of the complainant's injuries. PW2’s statement in the court's judgment indicates that the complainant told him that two boda-boda boys attacked the complainant, and he doesn't state that it was the Appellant. PW3 stated that when she arrived at the scene, the complainant was badly injured, could not speak and was unconscious, while PW4 stated that a boy named Nzioka Ndii (which the prosecutor failed to call in as witness) told him that his father was being killed by the accused person and when he got to the scene the complainant was saying "Wambua why do you want to kill me". PW4 stated that he was the first one to arrive at the scene and did not see the Appellant, and further stated that the complainant was from a bar. PW4 testimony varies from all the witnesses who stated the complainant was unconscious and unable to talk. Notably is also the fact that the evidence of PW4 was taken later while the complainant was in hospital as per page 39 of proceedings and 37 of the record of appeal. 26. The Appellant submitted that, the prosecution failed to prove beyond a reasonable doubt that the Appellant was the one who, at or immediately before or immediately after the robbery, used actual https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 4

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violence on the victim, as the cash allegedly stolen was not proven, and the key witness who saw the attack was not called to court. The complainant states that he was from a bar on his way home, and the injuries sustained may not have been inflicted by the Appellant. 27. It was also submitted that the alleged motorcycles that both the Appellant and the complainant had were never taken into custody as evidence or for inspection to prove if indeed the alleged lights were bright enough for the complainant to see the accused persons at night and identify them. They were neither produced as exhibits in court. 28. That the Appellant’s co-accused Samuel Nzioka Mutuku, absconded from court and to date has never been arrested. The proceedings and record do not reflect or give evidence on the efforts of arrest of the 2nd accused person despite him having been released on bond with a surety. The Surety one John Musila Mutuku (See page 16 of the record of appeal and page 19 of the document) was never discharged nor was the surety forfeited yet the magistrate proceeded to allow amendment of the charge sheet to remove the 2nd accused person's name from the charge sheet. Further, it is not in denial that the Appellant and the victim had major differences, and the case against the accused is a way for the complainant to get back at the accused by framing him. 29. The alleged revenge the Appellant had against the complainant for prior differences cannot be used by the trial court as stated at page 9 of the record of appeal in establishing the Appellant’s culpability, in the offence of robbery with violence, as the Appellant was not aware of the amount of money the complainant had on him and no evidence of the complainant having the alleged cash on him was established and more importantly theft of the Kshs.40,000/= in cash was not proved by the prosecution beyond reasonable doubt. Not even the wife of the complainant collaborated evidence of alleged sale of livestock to prove the source of the alleged stolen funds. 30. In light of the foregoing, the Appellant urges this court to find that the prosecution failed to prove its case against the accused beyond reasonable doubt, and the judgment and sentencing by the Magistrates Court at Kithimani (Hon. P. Wechuli (P.M) dated 7th February 2024 be set aside. The Respondent’s submissions. 31. The Respondent submitted that, PW1 at page 5 of the proceedings stated that on the fateful day the Appellant attacked him from the front. It was around 7:30p.m and the headlights of his motor cycle were on. He further stated in cross examination that the Appellant was his neighbour. He also stated he could see with the light of his motor cycle. PW4 also testified that when he found PWI, he was uttering words “Wambua why do you want to kill me" pointing to the Appellant. PW4 also testified that he was told by a boy he saw the Appellant attacking his father (page 25 of the proceedings). PW4 also testified that he found the Appellant at the scene leaving. The complainant PWI was positively able to identify the Appellant. He was someone well know to him as he is a neighbour and from the evidence it seemed the two had some grudge between them. 32. In determining the identification of the Appellant, the Respondent submitted that the trial court considered the length of time the witness had for seeing the perpetrator, the position from the Appellant. Reliance was placed in the case of Mwaura vs Republic [1987] KLR 645. 33. The Respondent submitted that identification was by recognition. The witnesses knew the Appellant and were able to place him at the scene and identify him as the perpetrator. Thus, the Appellant was able to be attached to the offence against PW1. 34. Further, with respect to ground 1 & 8 of appeal, it was submitted that identification was by recognition and there was no mistake or error in identification by the complainant PW I and the corroborating https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 5

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witnesses. They were able to place him on the scene as having committed the offence. There was no need for an identification parade as the complainant PWI was able to identify the Appellant. 35. On the element of theft, the Respondent submitted that PWI stated that he had some money around Kshs.40,000/= that he lost. The same has not been recovered. This proves that an item was stolen from the complainant PW1. 36. On use of or threat to use actual violence, the Respondent submitted that PW1 stated that he was hit on the head with a stone by the Appellant. The Appellant attacked him from the front. He stated that he tried to ask what the problem was and the accused I (the Appellant) told him he shall kill him and hit him with a stone on his face. As he alighted from the motor cycle, accused I (the Appellant) held his legs while accused 2 kept hitting him. He lost consciousness... ' (proceedings page 5) PW2 arrived at the scene and found the complainant bleeding and could not speak. PW3 found the complainant unconscious and badly injured and bleeding profusely. PW3 further testified that on the said night he could not speak and he gained consciousness after one week. PW4 also testified that they found the complainant PWI lying down in dire condition and bleeding. That PW5 the clinician corroborated the complainant’s PWI testimony. PW5 testified that PWI was examined and he had a deep cut wound in the scalp, 3 cm, the wound was sutured, lower lip was swollen with loss of teeth and the injury was approximate age of injury was 3 weeks. PW5 stated that a sharp and blunt object was used and the degree of harm was maim. He also produced the P3 Form as PExt.1 and the treatment notes as P Ext.2. Thus, it was proved that the complainant PW1 was assaulted during the incident. 37. On the defence, the Respondent submitted that the same was an afterthought and not strong enough to rebut the prosecution evidence as against the appellant. It was submitted that the trial court was right in rejecting the same. 38. In light of the foregoing, the Respondent submitted that the prosecution discharged its burden of proof and that the Appellant was properly convicted of the offence of robbery with violence. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. All ingredients of the offence were established beyond reasonable doubt. 39. In the instant case, the complainant was injured and also robbed of items by the Appellant. He committed the act using actual force that injured the complainant. The learned trial magistrate evaluated the evidence on the prosecution and was proper in finding that the prosecution proved its case beyond reasonable doubt. The conviction was safe and proper. As regarding the sentence imposed, the lawful sentence under the law for offence of robbery with violence is death sentence. The trial court however does not indicate as to why it departed from the prescribed sentence by law in an offence of robbery with violence. Be that as it may, looking at the circumstances of the case, the Respondent submits that the 30 years sentence imposed by the trial court is a sufficient and deterrent sentence and urges this court to confirm the same. 40. The Respondent submits that this appeal lacks merit and should therefore be dismissed in its entirety. Analysis and Determination 41. 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). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 6

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42. I have perused the trial court’s record, the petition of appeal, written submissions, and authorities relied upon by both parties. The pertinent issue arising herein for my determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt. 43. 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.” 44. The offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the aspect of violence. 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. 45. 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. 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: - 46. 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 47. PW1-Moses Maithia Mbatha whom the trial court omitted to indicate testified that he had some money from the sale of his livestock around Kshs.40,000/= that he lost. He stated that he was assaulted at 7.30pm at Kikule at Kwa Njenga on the road. He was from the bar at the market. PW2 -Charles Muema Mbatha stated that he was told by PW1 that he was attacked by two boda boda riders who hit him and he lost consciousness. They also stole from him Kshs.40,000/= that he had during the attack. PW3-Agnes Nzila, the complainant's wife did not mention anything about her husband having https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 7

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sold livestock on the material day or having lost Kshs.40,000/= in the alleged attack. PW4- Stephen Mbatha Maithya testified that a quarrel started in a bar, the Appellant and the complainant had prior differences. PW6- Corporal John Nganga, the Investigating Officer stated that he found the complainant in the hospital and in pain. He told him that Wambua and Mutuku had beaten him and stolen his Kshs.40,000/=. 48. On the foregoing, I note that the complainant and the prosecution did not lead any evidence to specify what kind of livestock and how many of it the complainant had sold and for how much. The complaint stated that he had been in a bar at the market. It is said a quarrel ensued at the said bar but it was not made clear who were quarrelling. 49. The evidence of the investigating officer did not demonstrate whether he attempted interrogate the complainant, the said bar owner/workers to collect more information on this serious case. 50. On the above analysis on the ingredient of theft, I am not convinced that the prosecution proved beyond reasonable doubt that the complainant had sold livestock worth Kshs.40,000/= which amount was stolen during the incident herein. b. Use of or threat to use actual violence 51. PW1 stated that each of accused persons had a motorcycle. They all stopped, he tried to ask what the problem was and the 1st accused/Appellant told him he shall kill him and hit him with a stone on his face. As he alighted from the motor cycle, the 1st accused/Appellant held his legs while the 2nd accused kept hitting him. He stated that the passenger alighted and went and told his son who came to the scene and took him to hospital. It is not clear who this passenger was and from whose motor bike he alighted from. 52. The complainant (PW1) at page 6 of the record of appeal stated that he was held by the legs by the 1st accused/Appellant while the 2nd Accused person beat him. 52. PW2’s statement in the court's judgment indicates that the complainant told him that two boda-boda boys attacked the complainant, but he didn't state that it was the Appellant. PW3 stated that when she arrived at the scene, the complainant was badly injured, could not speak and was unconscious. Whereas PW4 stated that a boy named Nzioka Ndii told him that his father was being killed by the accused person and when he got to the scene the complainant was saying "Wambua why do you want to kill me", the prosecution failed to call in this Nzioka Ndii who was a very crucial witness in this case. PW4 stated that he was the first one to arrive at the scene and did not see the Appellant. 52. PW4 at the same time, testified that he made calls and people came to their rescue. when he reached the scene, he found the Appellant leaving, Nzioka was absent. His father (complainant) was seated and this court finds it unbelievable how the complainant would be seated while unconscious. 52. Only the investigating officer testified that the complainant said the Appellant used pangas and rungus but again he did not say which of the two between the pangas and rungus were specifically used by the Appellant. 52. The complainant never said the Appellant used weapons particularly the pangas and rungus that the Appellant and his co-accused were allegedly armed with at the time of the incident as indicated in the Charge Sheet instead he stated that the Appellant told him he shall kill him and hit him with a stone on his face. As he alighted from the motor cycle, the 1st accused/Appellant held his legs while the 2nd accused kept hitting him. None of the prosecution witnesses corroborated the allegation of the complainant being attacked by the Appellant with Pangas and rungus. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 8

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52. The complainant stated that he was from a bar on his way home, it is most likely that the injuries sustained may not have been inflicted by the Appellant who also may not have stolen the complainant’s alleged Kshs.40,000/= from alleged sale of livestock. 52. In addition, I note that whereas the discharge summary from South B hospital show that the complainant was assaulted at his gate, the complainant himself stated that he was attacked when he had left his business heading home and on the way, he met both accused persons who attacked him. On the other hand, PW3, the complainant’s wife stated that the complainant told her that while on his way home from the market he was attacked by Wambua Nzioka and Mutuku’s son. PW4 stated that the complainant was from a bar. The big question is; where exactly was the complainant attacked? was the complainant assaulted/attacked at his gate, was he attacked when he had left his business (which was not disclosed) heading home, was he from a bar or while on his way home from the market. Again, on this element, I find the prosecution failed to 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 of this case. c. Identity of the perpetrator 59. The complainant testified that on the 19.4.2018 at 7.30 pm he had left his business heading home. On the way he met both accused persons who were his neighbours. The 2nd accused came to him from behind while the 1st accused/Appellant attacked him from the front. He had his motorcycle with him and the headlights were on. Each of accused persons had a motorcycle. That it was at night but he could see with the lights of his motor cycle. 60. The complainant, on the alleged day of the incident, on his way home he had a pillion passenger, who went to inform the rest of the witnesses of the complainant's injuries. PW2’s statement in the court's judgment indicates that the complainant told him that two boda-boda boys attacked the complainant, but he didn't state that it was the Appellant. PW3 stated that when she arrived at the scene, the complainant was badly injured, could not speak and was unconscious, while PW4 stated that a boy named Nzioka Ndii told him that his father was being killed by the accused person and when he got to the scene the complainant was saying "Wambua why do you want to kill me". PW4 stated that he was the first one to arrive at the scene where he found the Appellant leaving, Nzioka was absent. He further stated that the complainant was from a bar. PW4 testimony varies from all the witnesses who stated the complainant was unconscious and unable to talk. Notably is also the fact that the evidence of PW4 was taken later while the complainant was in hospital as per page 39 of proceedings and 37 of the record of appeal. 61. I have carefully perused the record of the trial before the lower court. I note that the prosecution failed to call the boy named “Nzioka Ndii” who told PW4 that his father was being killed by the Appellant and who according to this case was a crucial witness to the alleged robbery herein. Whilst I do agree that no minimum number of witnesses is required to prove a case, I find it very odd that the above-named key witness was not called to testify. No reason was given for the failure to call this crucial witness. The court is entitled to draw an adverse inference from the failure to call this witness. 61. This court finds that the prosecution failed to call the boy named Nzioka Ndii who told PW4 that his father was being killed by the Appellant and who according to this case was a crucial witness to the alleged robbery herein. No reason was given for the failure to call this crucial witness. It is trite that that failure to call a crucial witness by the prosecution entitles the court to make an adverse conclusion against the prosecution case and acquit the accused person. See David Mwangi Ndungu v Republic [2016] KEHC 1286 (KLR) and Bukenya Vs. Uganda (1972) EA 549, cited in Said Awadhi Mubarak Vs. Republic (2014) eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 9

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61. The complainant asserted that he had his motorcycle with him and the headlights were on and further that each of accused persons too had a motorcycle. That it was at night but he could see with the lights of his motor cycle. This court finds that the prosecution through the investigating officer did not lead any evidence to prove that in deed the complainant and the accused persons owned and or were in possession of the alleged motor cycles whose details including registration numbers remain unknown. In the absence of proof on the existence of the alleged motor cycles and lack of inspection reports on the working conditions and intensity of their lights, it was wrong for the trial court to have found that the complainant saw the Appellant using the light of the motorcycle. Further, the complainant having admitted to have been at the bar prior to the attack, most likely he was drunk and not in a stable mind to identify his attackers. 61. 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. 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 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] 61. 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] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7073/eng@2026-04-14 10

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61. 67. 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”, Lastly, in George Kamau Kinyua v Republic [2006] eKLR it was stated that: “ Where the only evidence of identification of an accused person is that of a single witness, the court should scrutinize the evidence under two tests. See OLWENO vs. REPUBLIC (1990) KLR 509. The first test should be whether the conditions under which the single witness claims to have identified the accused person were such that there was positive identification. The second test to which the evidence of a single witness should be subjected to is whether it could be relied upon without any other evidence, to sustain a conviction. These tests should be applied, in our view, even where the single identifying witness claims to have known the accused person prior to the incident. The circumstances under which the Complainant saw the Appellant are clearly alluded to in evidence. It was at night and that is why the Complainant had to flash a torchlight before he could see the people he met inside his compound”. 68. Based on the above cited cases, the facts before the trial court failed to meet all the elements on proper identification. 69. In the final analysis, I find 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. Therefore, I hold that the Appellant’s conviction was unsafe and therefore allow the appeal. On the sentence, the same is at the sole discretion of the trial court and there being no cross 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. 70. The upshot is that the Appellant shall forthwith be set at liberty unless otherwise lawfully held. 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/2026/7073/eng@2026-04-14 11

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