Lotaria Lekiluai v Republic

6. PW-3 an Officer at Archer Post Police Station received a robbery report from PW-1, and an attempted robbery report from one Samuel Lolot, of his money at the Petrol Station. He visited the scene and confirmed the reported incidents had actually occurred. They pursued the suspects but in vain. 7. On 27/2/2022 members of the public and Karama Security Officers escorted the Appellant herein to the Police Station. He had a jungle green belt decorated with beads and a hat. He also had a motorcycle wheel and number plates reading KMFH 562H. He was re-arrested and interrogated. He led the Officers to the bush where a Dayun Motorcycle, red in colour was recovered. It had no tyres. PW-1 Identified the Motorcycle as his. The victims identified the Appellant as one of the culprits. Other suspects were not traced and the Appellant was charged with the offences carried in the charge sheet. 8. The Appellant’s defence is that on 25/10/2022 he had requested DW-2 to sell him his motorcycle Reg. No. KMFC 3887. DW-2 declined to. The Appellant then requested DW-2 to accompany him to Wamba to look for a motorcycle to buy. At Wamba they found a Motorcycle with 2 men. The Appellant asked his brother for money to buy it. The motorcycle had a flat tyre. It was being sold for 36,000/-. He bought it and took the flat tyre for repair. It’s then he was arrested by police. He denied the offence. 9. The trial Court evaluated the evidence and found him guilty of the offence in Count 1. He was convicted of it and sentenced to suffer death. 10. The Appellant dissatisfied with the said conviction and sentence, appealed to this Court on the grounds that:1. The offence of robbery with violence was not proved beyond reasonable doubt. 2. The evidence leading to conviction and sentence was not corroborated. 3. The alleged robbers did not threaten the complainant. 4. There’s no evidence in support of identification of the Appellant at the scene. 5. There’s no evidence that the recovered motorcycle belonged to the complainant. 6. Key witnesses were not called by the Prosecution. 7. The Court relied on uncorroborated evidence of a single witness and did not warn itself of the dangers of relying on such evidence. 8. Defence was rejected without giving cogent reasons. 11. The Respondent opposed the appeal of which was canvassed by way of Written Submissions. 12. This being a first appeal, this Court is under a duty to re-evaluate and reconsider the evidence afresh and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify – Okeno –vs- Republic (1972) EA 32. 13. The offence of robbery with violence is created under Section 296 (2) of the Penal Code, which 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, beat, strikes, or use any other personal violence to any person, he shall be sentenced to death.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7374/eng@2026-05-26 2

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14. In the Case of Johana Ndungu –vs- Republic (1996) eKLR -The Court of Appeal held that proof of any one of the following circumstances is sufficient; 1. The offender was armed with a dangerous or offensive weapon; 2. The offender was in the company of one or more persons; or 3. The offender wounded, beat, struck, or used personal violence upon the victim. 15. The evidence on record shows that the complainant had parked his motorcycle when he noticed three men approaching at a nearby Petrol Station where he was. One of the men was armed with a rifle. Upon seeing them, the complainant fled from the scene. The assailants took his motorcycle. The Appellant was arrested the following day in possession of the said motorcycle wheel and number plates. Upon interrogation he led the police to the bush where the complaint’s motorcycle was recovered from. The Appellant was therefore in it’s possession. 16. The Central issue is whether the ingredients of the offence of robbery with violence were proved beyond reasonable doubt. 17. The prosecution did not adduce evidence that the complainant was assaulted, wounded, struck, or physically injured. Equally, there was no direct evidence that any verbal threats were issued to him. However, the evidence established two critical circumstances contemplated under Section 296(2) of the Penal Code; 1. The offenders were more than one person, three in number; and 2. One of them was armed with a rifle, which undoubtedly constitutes a dangerous weapon. 18. Under the principles set out in Johana Ndungu –vs- Republic, proof of any one of the prescribed ingredients is sufficient to elevate simple robbery to robbery with violence. In the present appeal, the Prosecution proved two of those ingredients. 19. The Court further notes that actual violence or express threats are not mandatory ingredients where the prosecution has proved that the offenders were armed or acted in company of more than one person. 20. The Appellant was in possession of the robbed motorcycle barely one day after the robbery. The doctrine of recent possession therefore became applicable. In Malingi –vs- Republic (1989) KLR 225 –the Court held that where recently stolen property is found in possession of an accused person and no reasonable explanation is offered, a presumption arises that the accused either stole the property or participated in the robbery. 21. Similarly, in Aram –vs- Republic (2006) eKLR – the Court stated that before the doctrine can apply, the prosecution must prove; 22. 1. That the property was stolen; 2. That the property was positively identified; 3. That the property was recently stolen; and 4. That the accused was found in possession of it. These elements were sufficiently established in this appeal. The motorcycle was positively identified by the complainant by it’s make, colour and registration number. It was recovered from the Appellant one day after the incident. The Appellant offered no plausible explanation as to how he came into https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7374/eng@2026-05-26 3

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possession thereof. He produced no sale agreement and gave no details of the person who allegedly sold it to him. 23. The Court is therefore satisfied that the Appellant was one of the perpetrators of the robbery with violence. 24. Upon re-evaluating the entire evidence on record, this Court finds that the prosecution proved beyond reasonable doubt that; 1. The robbery occurred. 2. The perpetrators were three in number; 3. One of them was armed with a rifle; and 4. The Appellant was found in “recent possession” of the robbed motorcycle. 25. The ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code were therefore fully established. 26. The conviction is accordingly upheld. 27. On sentence, this Court takes cognisance of the jurisprudence emerging from Francis Karioko Muruatetu & Another –vs- Republic. 28. The decision in the case only applies to murder cases and not any other offence. As such the mandatory death sentence for the offence of robbery with violence stands. I have no cause to disturb the same. 29. The bottom line is that the appeal lacks merit and is hereby dismissed. DATED AND DELIVERED AT MERU THIS 26TH DAY OF MAY, 2026. S.M. GITHINJI JUDGE 26/5/2026 In presence of:Appellant present of Embu Prison. Mr. Lekoone for the Appellant. Ms. Adhi for the State/Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7374/eng@2026-05-26 4

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