Timothy Jahani Muzami & 1 other v Republic

c. The Learned Hon. Trial Magistrate erred in both law and fact in convicting the Appellant by relying on electronic CCTV evidence which did not conform to the strict requirements of section 106B of the Evidence Act, which admission prejudiced the Appellant. d. The Learned Hon. Trial Magistrate erred in both law and fact in convicting the Appellant without drawing a nexus between the Appellant and any of the ingredients of the offence of robbery with violence. e. The Learned Hon. Trial Magistrate erred in both law and fact by shifting the burden of proof on the Appellant and by disregarding his defence evidence despite being unrepresented. f. The Learned Hon. Trial Magistrate erred in both law and fact in preferring a harsh and manifestly excessive sentence under the circumstances of the case by allowing herself to be held hostage by legislation, while the Appellant was clearly a first time offender as the records showed and was deserving of leniency. g. The Learned Hon. Trial Magistrate erred in both law and fact in ignoring the provisions of section 333(2) Criminal Procedure Code while imposing the harsh and excessive sentence on the Appellant. Issues 4. The issues for determination that arise from the grounds of appeal are: i. Whether the evidence tendered by the prosecution established the ingredients of the offence of robbery with violence ii. Whether the identification of the appellants was free from error iii. Whether the electronic evidence tendered by the prosecution met the requirements of Section 106B of the Evidence Act iv. Whether the learned honorable magistrate considered the defense tendered by the appellants v. Whether the sentence imposed was harsh and excessive. Analysis and Determination Duty of the first appellate court 5. The duty of the first appellate court is set out in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.” 6. In a case of robbery with violence the prosecution should prove that the accused person stole something capable of being stolen and in the course of stealing he used actual violence or threatened to use violence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 2

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to get or keep the property. The prosecution should also be able to establish one of the following aggravating factors: i. That the offender was armed with a dangerous or offensive weapon or ii. Was in the company of one or more persons iii. That the offender immediately before, during or after the robbery wounded, beat, struck or used any other form of violence against the victim. iv. The offender stole property of the victim Summary of the Prosecution’s Case. 7. The evidence tendered by the prosecution was that;- PW1 Paul Sewe Omany stated that on 25th June 2020 at around 7 : 00 am he was on Rose Avenue Kilimani outside the gate of Almond court when a motorcycle came and stopped beside him. He went on to state that Accused 1 and 2 jumped off and ran towards him and demanded his dark grey rucksack bag. Inside the bag there was a laptop MacBook air, iPhone 11, HTC1 phone, Samsung note 3, a pair of glasses, magic keyboard and movie power bank charger for the phones and the laptop which he has receipts MFI1 a-e. 8. PW1 went on to state that the Accused 1 and 2 went back to the motorbike and sped off. The witness further stated that the security guard of Almond court came out after they sped off and told him that he would have to report to his supervisor because it happened outside their gate. 9. The witness further stated that the incident happened underneath a CCTV camera in the corner of the gate of Almond court. He then he proceeded to work to report since he wanted information in the gadgets to be made inaccessible due to the nature of his work. He went on to state that he crossed over to Kilimani police station and made a report and explained the role played by each accused. 10. PW1 further stated that Accused 1 held a knife to his chest and took his phone from his jacket and the knife was silver with an edge like a sword while Accused 2 was armed with a pistol which he used to hit him on the head and took his bag. He went on to state that the pistol was black in color and he does not know whether it was recovered and the knife in silver color was identified as MFI2. 11. The witness told the court after four days he was called to the police station to participate in identification parade and the identification form was produced as MF14. 12. He went on to state that he identified Accused 1 and 2 by touching them and the following day he was called to the police station to identify some office items which had been recovered. He was told to switch on the phone to prove it was his. He did so and he was informed that the gadgets were recovered in a shop in town. The items were;Iphone 11 (black in color) IMEI No. 356573101295067 HTC 1 phone (silver in color) MFI6 Macbook Air silver in color serial No. C02XQ5D7JK77 -MFI7. 13. Upon cross examination by Jumba Counsel for Accused 1 and 3 , the witness stated that he had never met the people who accosted him before and that Accused 1 had a mask on and Accused 2 was wearing a hoodie which was hanging on the back of the head not the face. He went on to state that at the time of the robbery he was scared but not confused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 3

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14. The witness participated in the identification of the appellants in two separate parades. 15. The witness further stated MFI 1 a-e, 13.3inch Macbook Air belonged to his employer DPO and that the documents did not demonstrate that they belonged to him. He went on state that Iphone 11 password could not be changed that is why he went to the office to save the devices and he was told by the investigating officer that the devices were recovered in a shop. He however did not give him the name of the shop where they were recovered. 16. The witness told the court that he reviewed the CCTV footage with police officers from DCI Kilimani a couple of hours later after the incident. 17. On cross examination by the Accused 2 the witness stated that he was robbed on 25 June 2020 when a motorbike stopped to the opposite side on the road and Accused 2 hit him on the head with a pistol using his right hand and grabbed the bag using his left hand and fled the scene afterwards. The witness told the court that he identified the 1st appellant at the parade. The incident happened at 7.00am and took a minimum of 45 seconds. 18. Upon re-examination PW1 stated that there is nothing peculiar about the face of the accused but he saw the part of his face which was not covered and he could not forget him. He went on to state that it was early morning and the sun was out, he did not know the members of the parade nor was he told where the accused would be placed. He went on to testify that the Accused 1 and 2 seated in the dock were the ones who robbed him. The witness testified that MFI1a-e belonged to his employer but was in his custody and in his possession during the robbery. 19. PW2 Paul Gachie Njega testified that he is a laptop technician in Nairobi CBD Luthuli Avenue where he repaired both old and new laptops. He went on to state that he knows Accused 3 as a customer, he is called Ibrahim Hussein. He went on to state that on 27th June 2020, around 4 pm he was in Munyu road in CBD when Accused 3 called and informed him that he had a laptop he wanted him to repair. He knew his phone number 071xxxxx69. He went on to state that they met with the Accused along Munyu road where he handed over the laptop which was MacBook Air grey in color MFI7 the one before the court. He was to look for a charger and work on it after charging. 20. The witness told the court that on Sunday around midnight while at home in Pangani he heard a knock on the door when he opened the door, people who identified themselves as DCI officers from Kilimani burst in. They asked for the laptop that he was given by the Accused 3 and he told them it was at the workshop and they asked him to accompany them to Kilimani police station where he was detained. 21. The witness went on to state that on Monday he escorted the DCI police officers to his shop and handed over the MacBook Air laptop recorded a statement and met accused 3 at the police station who told him what had transpired. 22. Upon cross examination by Mr. Jumba for Accused 1 and 3, the witness stated that he recorded a statement, the one before the court and his job is the repair of laptops. He went on to state that he had nothing to show that Accused 3 gave the laptop to him and he had nothing to show the phone number he read out belonged to accused 3. The witness further stated that he was arrested by five DCI officers and accused three was not present when he went with the DCI offices to his workshop where they recovered the laptop. According to him the issue of the laptop was investigated and he was found not culpable and he was treated as a witness. 23. Upon re-examination the witness stated that accused 3 called him and came almost immediately. He told the police how the laptop came to his possession and they were satisfied. He stated that he explained everything in the presence of Accused 3. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 4

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24. PW3 No. 8xxx3 PC Kevin Kisasati testified that he is based at DCI Kilimani and on 25th June 2020 they were investigating a case of robbery with violence and they arrested one Ibrahim Hussein on 20th June 2020 within Kawangware and later they arrested two other suspects Timothy Jahani and Humphrey Minyata at Pangani area who are all before court. 25. PW3 went on to state that they conducted a search at accused 1’s house in Kawangware and recovered a jacket that had been seen on the CCTV footage, shoes and knife. He went on to state that Accused 3 assisted them to recover a laptop and two mobile phones which was stolen from the complainant at the time of the robbery and the complainant was called to identify his phones and laptop. He further stated that the complainant was able to put a password on the laptop and opened it. 26. Upon cross examination by Mr. Jumba for Accused 1 and 3, the witness stated that they recovered some items and an inventory was prepared and signed in the presence of Accused 1. He went on to state that other witnesses were police officers and it was at 2am no one else was around. Pw3 went further to state that the phones and laptops were recovered from different people who were not charged because they were only given the items to repair. According to the witness, one Hassan took the items for repairs. 27. The ID parade was conducted but PW3 could not remember the date when it was done. 28. The CCTV footage was obtained by the investigating officer. From the CCTV the witness could identify the knife that the attackers had during the incident and he identified it to be the knife that was before court. 29. According to Pw3 the Accused 1 and 2 featured in the CCTV and that’s why they were arrested. 30. Upon cross examination by Accused 2, PW3 stated that accused 2 was the one armed with a gun on CCTV footage which they never recovered. He matched the appearance on the CCTV footage. 31. PW4 No. 7xxx9 CPL Dennis Miheso testified that, he is a DCI officer based at Kilimani and they conducted investigation and arrested accused 3 who told them he had bought a laptop and phones from one Timothy whom they were in communication. He went on to state that accused 3 called accused 2 and told him that he wanted to give him money that is when they arrested accused 2 in Pangani area. Upon arresting Accused 2 he said he was not alone there was a person called Minayata Accused 1. 32. The witness went on to state that they continued with their interrogations and accused 2 took them to his home in Pangani where they found accused 1 and arrested him. The officers conducted a search but did not recover anything. Pw4 went further to state that accused 1 took them to his sisters place from where they recovered a knife, yellow jacket and shoes. 33. Pw4 went further to testify that Accused 3 led them to a shop where he had taken the laptop and phone which they recovered and he was with PC Kisasati , PC Atika and a police driver when the arrests were effected. 34. Upon cross examination by Jumba for Accused 1 and 3, PW4 stated that he saw the video clip that went viral on the phone and the footage which was extracted. He went on to state that he was not able to identify anyone in the CCTV footage but the incident was clearly captured. The laptop was recovered from a shop where it had been taken for repair and Accused 3 left them there. That apparently was the shop of Pw2. 35. Pw4 went on to state that he could not tell who was holding the knife and pistol because the faces were not clear and the laptop and phone were recovered in different places in town. He further stated that the items in the shop were received confirming that they were in the business of repairing phones and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 5

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laptops. The witness however confirmed that the complainant identified the two appellants during the identification parade. 36. The witness further stated that Accused 2 told him that they committed the robbery with Accused 1 and he led them to arrest the 1st accused. 37. PW5 – James Harold Kundu a security guard, Almond Court testified that on 25 June 2020 at around 6:48 a.m, while on duty at Almond Court, he viewed CCTV footage showing two men accosting a pedestrian. One was armed with a knife and the other with a pistol. They robbed the pedestrian of a black bag before fleeing on a motorcycle towards Dennis Pritt Road. He stated he could only identify the clothes the assailants were wearing, but not their faces because they had face masks. PW5 could not visually identify the attackers in court. 38. The incident took about 5–10 minutes and both robbers were wearing face masks. 39. PW6 Jeremiah Njoroge Mbugwa a phone repair technician stated he repairs phones at Luthuli Avenue. On 27 June 2020, accused 3 (his client named Ibra) brought him two phones an HTC and a Samsung for repair. Before he could begin repairs, accused 3 returned accompanied by police officers, who claimed the phones were stolen items. PW6 handed over the devices and accompanied them to the police station. He said he did not know accused 1 and 2. 40. Upon Cross-examination PW6 confirmed he usually issues receipts but did not issue one in this case because accused 3 arrived when he was closing. He had repaired phones for accused 3 several times before. 41. PW7 No. 8xxx7 PC Charles Atika DCI Kilimani stated that he was part of the investigative team. He confirmed that on 25 June 2020, they received a robbery report from the complainant and viewed CCTV footage from Almond Court showing two men alighting from a red motorcycle; one held a knife, the other a pistol. He went on to state that on 28 June 2020, acting on information, they arrested accused 3 at Kombo stage, Kawangware. Accused 3 allegedly led them to Pangani, where accused 2 was arrested. Accused 2 then led them to Chai Road, where accused 1 was arrested. 42. PW7 stated accused 1 took them to his residence in Kawangware, where they recovered:Sports shoes (MF18)Yellow/Brown jacket (MF13)Knife (MFI 2) The witness confirmed that items stolen were later recovered through accused 3, including phones and a MacBook. 43. Upon Cross-examination the witness stated that one could not identify the robbers faces on the CCTV faces could not be identified. The arrest of accused 3 was based on confidential information. He did not know why some individuals like Njenga from whom the Macbook was recovered were not charged. He also maintained that accused 3 led them to arrest accused 2, and accused 2 led them to accused 1. 44. PW8 No. 23xxx2 C.I. Beneutychus Forensic Imaging Expert testified as a forensic expert. He authenticated the CCTV footage using forensic software (VLC 3.0.10). He confirmed the footage was not tampered with. 45. He produced printouts showing the complainant in a navy-blue suit carrying a black bag two attackers one with a brown jacket, green marvin, blue jeans, white-soled sport shoes carrying a knife and the other in a black jumper with hood, black jeans, white shoes carrying a pistol. He also produced the certificate MFI 12, report MFI 11, and CD MFI 13 extract from the CCTV footage. 46. The assailants according to Pw8 had covered their heads one with a brown jacket covering his head and the other was wearing a black jumper with a hood covering his head. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 6

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47. Upon Cross-examination by Jumba for Accused 1 and 3 he confirmed his background in agriculture but with extensive forensic training. He did not examine or visit the original CCTV cameras. He only verified the extract given to him and confirmed it was authentic and real-time. He could not identify the location of the footage from the video alone. 48. PW9 IP Margaret Muthoni Identification Parade Officer conducted two identification parades on 29th June 2020 for Accused 1 and Accused 2. She assembled eight participants who resembled the accused. Accused 1 was identified twice by the complainant, both before and after changing position. He raised no objection and signed the parade form. Accused 2 was also identified by the complainant. He too raised no objection and signed the form. The parade forms were all produced as Exhibits 14 (a) and (b). PW9 confirmed she had no initial knowledge of the accused persons. 49. Upon Cross-examination PW9 stated that she followed all ID parade rules. The complainant remained in the DCIO’s office until called. Accused persons selected their own positions and both accused confirmed satisfaction with the process. 50. PW10 No. 8xxx4 CPL Noah Kiplagat Investigating Officer testified that he was the lead investigator. He confirmed receiving the robbery report on 25th June 2020. The complainant informed him he was attacked by two men armed with a pistol and knife, who robbed him of a MacBook, phones, and other items. He went on to state that he visited the scene, viewed CCTV footage with the guard, and initiated investigations. On 28th June 2020, they arrested accused 3, who allegedly volunteered information leading to the arrest of accused 2, and subsequently accused 1. 51. PW10 confirmed that in accused 1’s house, officers recovered a brown jacket, shoes, and a knife, items he stated matched what he saw in the CCTV footage. He also stated that they recovered stolen items (MacBook, iPhone, Samsung/HTC) were traced to repair shops (PW2 & PW6) through accused 3. 52. Upon Cross-examination PW10 confirmed that complainant identified his gadgets using IMEI and supporting documents. He did not personally conduct the recoveries nor take statements from accused 1’s sister. He could not explain the technical process of CCTV extraction. He further insisted accused 1 and 2 committed the robbery while accused 3 handled stolen property. 53. He went on to state that accused 2 led to accused 1’s arrest. He confirmed he did not dust the items for fingerprints due to their identifiable nature. The Defence Case 54. DW1 Humphrey Minyata Muhambe testified that he resides in Kabiri within Satellite and was, at the time, engaged in selling keg beer at Mlango, Pangani. He stated that he is aware of the charges preferred against him but denied any involvement in the alleged offence. 55. He testified that on 29th June 2020, while waiting for transport at Chai Road, Pangani, police officers arrested him alongside another individual. He was taken to Kilimani Police Station, where he was informed that investigations relating to a robbery with violence incident were ongoing. He stated that the officers demanded that he surrender a firearm, which he denied possessing. He was later escorted to his residence for a search, but he maintained that nothing was recovered there. 56. DW1 further wondered how the complainant could identify him from his eyes yet the complainant had stated that the assailants were reportedly masked and hooded at the time of the incident. He disputed this claim and denied that he was the person captured in the CCTV footage. He averred that he was not present at the scene of the offence and had never met the complainant prior to his arrest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 7

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57. He stated that no recoveries were made from his sister’s home, and that his sister did not record any statement nor testify as a witness. He denied ever signing an inventory or leading the police to any recovery. 58. Regarding the identification parade, DW1 stated that it comprised six participants and that he was the first accused person to participate. He noted that the officer who conducted the parade later testified in court. He acknowledged that a knife and a jacket were produced as exhibits but maintained that they were not recovered from him and were unknown to him. 59. Upon cross-examination by the prosecutor, DW1 stated that he did not know the complainant or the investigating officer and therefore had no reason to believe they would frame him. He denied leading the police to the arrest of Accused 2. He acknowledged that PW1 identified him during the identification parade and confirmed that he did not raise any complaint regarding the manner in which the parade was conducted. He stated that he was positively identified during the parade. He further testified that he was arrested in Pangani by DCI officers from Kilimani despite having committed no wrongdoing. 60. On re-Examination, DW1 clarified that he personally did not complain about the conduct of the identification parade. He stated that any objection regarding the manner in which the parade was conducted was raised by his advocate. 61. DW1 concluded by stating that he only became aware of the charges upon arrest. He denied knowing accused persons 2 and 3 prior to the case and reiterated that no exhibits were recovered from him. 62. DW2 Timothy Mutami Jahani testified that he resides along Chai Road, Pangani, and was employed as a steward at Pangani Auctioneers. He stated that he was arrested on 29th June 2020 at Pangani Shopping Centre between 7:00–7:30 p.m. He was informed that he was required to assist in investigations concerning a robbery incident and was escorted to Kilimani Police Station. He was arrested together with a male and a female person, both of whom were unknown to him. 63. He stated that the arresting officers mentioned they were tracking a phone allegedly in communication with Accused 3. He testified that he was not in possession of a phone at the time of arrest. Police officers proceeded to search his residence, during which a phone was recovered. He later appeared in court. He denied the charges and affirmed his innocence. 64. DW2 testified that an identification parade was conducted, but in his view, he was not placed with persons of similar physical appearance. He expressed dissatisfaction with the parade procedure and stated that he informed the officer in charge. He added that he refused to sign the parade form. He further stated that the complainant identified him in the parade, claiming to recognize him from his eyes, while PW5 stated that recognition was based on clothing. DW2 emphasized that no clothing or other items connected to the offence were recovered from his home. 65. He stated that the investigating officer claimed he was arrested in Ngara, yet he maintains he was arrested in Pangani. He further denied leading the police to the arrest of Accused 3, stating he did not know him, had no communication with him, and possessed no evidence linking him to that accused. 66. Upon Cross-Examination DW2, stated that he did not bring a witness to confirm his employment. He confirmed that he was asked to bring a witness for the parade but did not do so. He acknowledged that the complainant identified him during the parade and that although several participants were present, he was the only one identified. 67. He testified that he did not know the investigating officer and had no reason to believe the officer would testify falsely against him. He noted that in the officer’s statement, the officer claimed DW2 led him to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 8

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the arrest of Accused 3, but in his oral testimony, the officer stated that Accused 3 led him to DW2. He said he could not tell whether the officer had any motive to frame him. Analysis of the law and Determination 68. At the hearing of this appeal, the appellant and the respondents relied wholly on their respective written submissions which this court has duly considered. 69. The ingredients of the offence were aptly discussed by Court of Appeal in the case of Johana Ndungu vs. Republic CRA. 116/1995, [1996] eKLR where the stated as follows:“ In order to appreciate properly as to what acts, constitute an offence under Section 296 (2) of one must consider the subsection in conjunction with Section 295 of the PC. 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 after to further in any manner the act of stealing. Thereafter, the existence of the afore-described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved, will constitute the offence under the subsection;i. If the offender is armed with any dangerous or offensive weapon or instrument; ii. If he is in company with one or more other person or persons; iii. 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.”[See also Oluoch v Republic [1985] KLR]. 70. The same Court in the case of Criminal Appeal No. 300 of 2007, Dima Denge & Others v Republic (2013) eKLR, the learned Bench stated as follows: “the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.” See Kanuu v Republic (Criminal Appeal E065 of 2022) [2024] KEHC 6586 (KLR) 71. The evidence tendered by the prosecution established that at the time PW1 was attacked the assailants were three. One of them was armed with a knife and the other a pistol. A knife and a pistol are offensive weapons capable of causing injury to a person. The possession of those weapons and the fact of the assailants being more than one satisfy the law in respect of the offence of robbery with violence. 72. The victim of the attack testified that he was robbed of valuables which included a Macbook, Iphone and HTC phone all of which were items capable of being stolen. PW1 was emphatic that it was the appellants who grabbed his rag sack bag which had the items and upon the recovery of the phone there is evidence that when he was called to the police station, he was able to open the phone thus confirming that it was his. The taking away of the properties of PW1 by the appellants was not with his consent therefore the appellants by that very act unlawfully dispossessed him his properties with the intention of permanently depriving him of the use thereof. 73. In this court’s view the element of robbery was adequately proved beyond a reasonable doubt. 74. On the issue of identification, the evidence shows that the incident happened at 7.00 a.m. in the morning and according to PW1 the sun was already up thus making it possible for PW1 to identify his assailants. Although, there is evidence that the attackers wore clothing that covered their heads, certainly for them to have been able to see PW1 and his bag their faces must have been uncovered. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 9

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two assailants, who grabbed the bag from him jumped off the motorbike and came directly to where he stood before taking the bag that contained his items with them. 75. It is the finding of this court that although the attack was sudden, PW1 stated that he was not confused as not to be able to identify the assailants. The conditions prevailing at the time of the attack favored positive identification and it is no surprise that PW1 was able to identify the two appellants during the parade. 76. In R Vs Turnbull & Others (1976) 3 All ER 54 , the guidelines contained in the following passage by Widgery LCJ are accepted as the position of the law on identification in Kenya today;- “ First, Whenever the case against an accused depends wholly or substantially on one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witness can all be mistaken. Provided this is done in clear terms, the judge need to use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent observation to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Finally, he should remind the jury of any specific weakness which had appeared in the identification evidence. 77. The watchman who observed the incident stated that the robbery took about 5 to 10 minutes. The period taken is in this courts view long enough to have enabled PW1 to identify his assailants even though he had seen them for the first time. There was no impediment that could have prevented him from positively identifying the two. The fact that he identified them with ease at the parade further demonstrates certainty on his part thus the conviction of the appellants was safely arrived at and the same ought not to be disturbed. 78. In regard to sentence, this court notes that the appellants did not injure the complainant in the course of the robbery thus the matter was not aggravated enough to call for a death sentence. In the circumstances this court is not inclined to interfere with the life imprisonment imposed on the two appellants. 79. The appeal on both conviction and sentence is hereby dismissed. 80. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JANUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Ms Ogega for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 10

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Appellants present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11518/eng@2026-01-15 11

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