Josephine Khatenje v Director of Public Prosecutions

iv. The Learned trial Magistrate erred in law and fact by failing to consider the defense evidence which was credible and in particular that the Appellant was not involved in the robbery and hence arrived at the wrong conclusion. Issues for Determination 3. The following issues for determination arise from the grounds filed by the appellant;i. Whether the prosecution had adequately proved all the ingredients of the offence of robbery with violence against the appellant ii. Whether the circumstantial evidence relied on by the trial magistrate was sufficient to establish the offence of robbery with violence against the appellant. iii. Whether the defense of the appellant was duly considered. Summary of Prosecutions Case 4. The prosecution called a total of 8 (eight) witnesses but did not call the investigating and arresting officers. The evidence was as follows;- 5. PW1 Razia Feroz Rajani, a housewife residing in Kitisuru, Nairobi stated that on 3rd October 2014 at about 1.30 p.m., she was at home eating lunch while her daughter Leila Rajani was upstairs taking a shower. After finishing her meal, she heard the front door bell ringing. The grill door was locked. Her daughter later came downstairs, and PW1 opened the first door and saw Josephine, a maid employed by her neighbour Ken Ooko, standing together with a man wearing a brown jacket. 6. She went on to state that Josephine told PW1 that the man was an electrician. 7. PW1 asked Josephine to show him the electricity meter, explaining that the meter was located on the neighbour’s side of the compound. She stated that there were two houses in the fenced compound, both owned by her family and not rental houses. 8. PW1 testified that she opened the door because she believed Josephine knew the man. Immediately after opening the door, the man pointed a gun at PW1 and struck her on the head with a blunt object, causing her to fall down. She stated that it was the electrician who hit her. 9. She testified that there were four attackers in total. Her daughter Leila, who was standing behind her was also hit hard on the head, fell down and lost consciousness. 10. The attackers forced themselves into the house and dragged PW1 upstairs while she was bleeding profusely. She pleaded not to be forced to sit on the floor and requested a stool, which they allowed. She observed that one attacker had a gun and another had a sharp object. They demanded money from her. PW1 stated that there was sufficient lighting in the room and that the attackers were not wearing masks. 11. She went further to state that the attackers brought her daughter upstairs. They went through the house stealing, opened drawers in Leila’s room, which was opposite PW1’s bedroom, and stole jewellery and money. They even removed PW1’s mattress while searching for money. 12. PW1 testified that Josephine was standing at the verandah next to her bedroom during the robbery. She heard a vehicle hooting outside, after which the attackers demanded the gate keys. Josephine stated that she had the keys and went to open the gate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 2

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13. PW1 testified that every Wednesday David, a driver employed by Ken Ooko would drop children to school. Since the incident occurred on a Wednesday, she believed the hooting vehicle was the school vehicle. 14. She stated that her own maid was Pamela Odhiambo and that David had been present in the compound from morning until about 1.00 p.m., when the robbers entered. 15. PW1 testified that when Josephine opened the gate for David to leave, that was when she allowed the thieves into the compound. She further stated that her neighbors worked in a bank that David was their driver and that Josephine was their maid. 16. She observed that the attackers were not frightened when Josephine went to open the gate and continued stealing. 17. She stated that Vivian a daughter of Ken Ooko wanted to go to Village Market to repair her phone and that Josephine opened the gate for David and Vivian and then returned to her employer’s house. 18. Another daughter Jesica remained at home, and PW1 stated that Josephine should have alerted her to inform the parents that a robbery was taking place. 19. PW1 further testified that she heard one of the attackers receive a phone call and state that they had not finished the work. The attackers then restrained PW1 by holding her legs and mouth. They took her daughter downstairs to the father’s room, stole more items, and demanded car keys. 20. Her daughter handed over the keys to motor vehicle registration number KBU 951X, a Toyota NZE. They tied her daughter, loaded the stolen items into the vehicle, took the house keys, locked the gate with a padlock, and drove away using the stolen vehicle. 21. PW1 produced photographs of the motor vehicle as exhibits: the front view photograph marked MFI P1(a), the back view photograph marked MFI P1(b), and the chassis number photograph marked MFI P1(c). 22. A few minutes after the attackers left David arrived. PW1 slowly went and called out to him. Her daughter Leila contacted her daughter-in-law using the landline, and the daughter-in-law came to the scene. 23. A neighbour, Gideon Moi, sent a person named Simon to assist. PW1 was taken to Aga Khan Hospital, where she was admitted. Her wounds were stitched, her hand was swollen and she later developed a problem with her right eye as a result of the assault. 24. PW1 produced treatment documents from Aga Khan University Hospital, namely the discharge summary marked MFI P2(a) and the discharge checklist marked MFI P2(b). She testified that she was admitted for about three to five days. 25. Upon discharge, she realized that several items had been stolen, namely three rings, four bangles, four chains, three watches, and Kshs. 20,000 in cash, one of the chains being valued at Kshs. 200,000. A P3 form dated 8th June 2015, marked MFI P3, was filled after her discharge. 26. She also produced the log book for the stolen motor vehicle, a Toyota Corolla belonging to their wholesale business, marked MFI P4. 27. PW1 further testified that she had known Josephine for about three years and had treated her like a daughter. She stated that Josephine was arrested about two months after the incident from the neighbour’s house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 3

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28. PW1 identified the 2nd accused from the dock and stated that she saw him during the robbery although she could not remember what weapon he was carrying. She stated that she recorded her first statement while in hospital and later recorded another statement. 29. She further testified that she attended an identification parade about one month later but could not identify any suspect. She stated that she had not fully recovered from the incident and that the shock caused her to develop diabetes. 30. During cross-examination, PW1 stated that she knew and recognized the 1st accused as Josephine. 31. She further stated that she attended an identification parade on 29th November 2014 but could not identify anyone because she was still in shock. She testified that she remembered the face of the 2nd accused before she was hit but could not recall who did what during the robbery as everything happened very fast. 32. She stated that she had been seeing the 2nd accused in court together with Josephine but had never seen him in the neighborhood before the robbery. 33. During re-examination, PW1 stated that Josephine appeared shaken when she knocked at the door and that the man accompanying her produced the gun immediately after the door was opened. She stated that she could not remember exactly who hit her and her daughter because all the attackers acted together, but she maintained that she remembered the face of the 2nd accused. 34. PW2 Leila Rajani stated that she was residing along Peponi Road, Kitisuru, with her parents Faroz Rajani and Razia Rajani. She testified that she worked with her father at Ali’s Wholesalers along Keekrock, but was on leave at the time. She recalled that on 8th October 2014, at around lunchtime, she was upstairs taking a shower when the doorbell rang repeatedly. 35. She went downstairs with her mother and, upon opening the first door, saw Josephine, the neighbour’s maid and the 1st accused, standing with a tall man. 36. She testified that the man showed her mother two Kenya Power job cards, and Josephine said he was from Kenya Power and had read their neighbour’s meter and wanted to read theirs. 37. PW2 testified that Josephine continued working after the incident and was arrested around November 2014 when officers came and took her away. 38. She recorded her statement the following day at home. She attended an identification parade at Gigiri Police Station, where about ten people were lined up, but she was unable to identify any suspect as she was still in shock. She stated that only the stolen motor vehicle was recovered. 39. During cross-examination, PW2 stated that she saw Josephine at the door with a man wearing a dust coat. She testified that she was given an opportunity to identify the attackers but could not do so due to shock. 40. She stated that in her statement she had indicated she could identify three attackers and described them as a tall thin man in his late forties, a short stout man, and the first man who approached them. She stated that she uses eyeglasses but was not wearing them on that day, although she could still see. She testified that she had attended court several times and had been seeing the accused persons in court. 41. During re-examination, PW2 stated that she was not sure whether she saw the 2nd accused during the robbery. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 4

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42. She testified that Josephine left their house when a car arrived at the gate and went downstairs with someone escorting her. 43. She later discovered that Josephine was locked inside her bathroom with a padlock when PW2 was looking for the gate key and calling out her name. PW2 stated that they were tied up during the robbery, that the attackers took their keys, and that their door was broken when people later entered the house. 44. PW3 Simon Kibelyon testified that he worked in Muthaiga Estate along Peponi Road under the employment of Gideon Moi. He recalled the events of 8th October 2014, when at about 2:00 p.m., he received a call from David, a neighbour, who informed him that the Rajani family had been attacked by robbers and that the compound gate had been locked from outside. 45. David requested that he bring a tool to break the padlock. PW3 took a metal rod and proceeded to the compound to break the padlock. 46. Upon arrival, he observed that the daughter-in-law of the complainant and Mama Leila were present, and he noted that Leila Rajani had sustained injuries to her head and was bleeding profusely. 47. PW3 testified that he assisted by breaking the padlock and accompanying the injured women to hospital. He later recorded a statement with police and identified the maid, Josephine (1st accused), but stated that he did not know the 2nd accused. 48. During cross-examination by Mr. Khamati, PW3 stated that the neighbours did not employ a watchman during the daytime and that a man named Mutiso acted as the night watchman. 49. PW4 Edwin Kibet, stated that he is an administrator in the Department of Pathology at Aga Khan University Hospital, Nairobi, where he had worked since 2009. He testified that documents he was presenting came from the hospital records, which were processed using the hospital’s reference system, including reference number AK133. He confirmed that officers from the CID visited the hospital to follow up on certain records. 50. He further stated that, the medical report he presented was prepared by Dr. Lydia Ogunde and concerned Josephine Khatenje (AK No. 1565622). The report, dated 14th October 2014, was marked MFP 8. PW4 also produced laboratory reports, marked MFP 9, showing that the patient had been attended to at approximately 7:15 p.m. on the same date. He testified that he supervised the printing of these reports, which had official hospital stamps, and intended to produce them as exhibits P7, P8, and P9. 51. During cross-examination by Mr. Khamati, PW4 explained that he did not record any statements but that CID officers had visited the hospital twice regarding these reports, and that the hospital had conducted examinations on the specimen received but did not forward it to the Government Chemist. He also explained that the term “harm” on the report indicated that the doctor had observed injuries on Josephine Khatenje. 52. PW5 PC Charles Mwangi (No. 5xxx7), stationed at Kamwangi Police Station, Kanjeria Police Post testified that on 9th October 2014, he was with APC Joseph Mureithi and received information from a good Samaritan that a vehicle had been abandoned in the Jakai Gachie area. Upon arrival, they found the vehicle, registration number KBU 951X, a grey Toyota IST, parked on the left side of the road as one faces River Lori. 53. PW5 reported the discovery to his superior who sent a breakdown vehicle to tow it to Kihara Police Post. On 21st January 2015, officers from CID Gigiri confirmed that the vehicle had been stolen and PW5 handed it over to them. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 5

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54. During cross-examination by Mr. Khamati, PW5 stated that he did not investigate how the vehicle ended up at the roadside and that they had not tampered with it, 55. PW6 Gregory Mutiso Kafai, testified that he is a watchman in Kitisuru, employed by Mr. Ken and Mama Leila, having worked there since 2011. He testified that on 9th October 2014, at 6:00 p.m., he reported for duty and found police officers at the gate, who informed him that Mama Leila had been attacked and taken to hospital and that the house girl had also been taken for treatment. 56. PW6 stated that the house girl was Josephine (1st accused). He recalled that she borrowed his phone secretly that evening, requesting it be used after serving tea at 8:00 p.m. Suspecting her intentions, PW6 activated the phone’s auto-recorder. Josephine called a man named Andrew using the phone, and PW6 observed the conversation, which was in Luhya language, from the servant’s quarters. PW6 preserved the recording and later sought a translation, which was written down and handed to police. 57. He also informed the driver David about the recording. On 12th November 2014, he took the evidence to Sarit Centre police officers, where he recorded his statement. The mobile phone and the Micro SD card were produced as MFP 10(a) and 10(b) respectively. 58. During cross-examination by Mr. Khamati, PW6 stated that he had previously assisted Josephine financially and that there had been no disagreement regarding a debt. He also explained that the translation of the recording had been done by a friend, whose name he could not recall, and that the original translation had been handed to police but was not retained. 59. During re-examination by Mr. Kunga , Prosecution, PW6 clarified that he had no grudge against Josephine before lending her the phone. 60. PW7 Inspector Joseph Olom, testified that he is a certified Computer Forensic Investigator attached to A.T.P.U., with 11 years experience in investigating electronic devices. He testified that he was presenting evidence on behalf of a colleague, Inspector Nicholas Waringa, who had been transferred and could not testify. 61. PW7 told the court that he was familiar with Waringa’s handwriting and procedures, having supervised him for several years. He testified that on 18th February 2016, an exhibit memo MFI P11 was received, enclosing an Itel mobile phone serial number 84431716912464 (MFI P10(a)), a Safaricom SIM card number 071xxxxx16, serial 89254027641014219791 (MFI P12), and a 2GB Techno Micro SD card (MFI P10(b)). Forensic extraction was performed using Cellebrite, but since the phone was incompatible, the extraction relied on the SIM and Micro SD card. The extracted data revealed three audio files in Luhya language, namely: “The Mwore – 20130101000228.war,” “Josp Man – 20141009193948.war,” and “Josp Man – 20141009194204.war.” These were handed over to the investigating officer for translation and transcription. 62. PW7 also produced a DVD disc MFI P13, a forensic report dated 15th March 2016 (MFI P14(a)), and a certificate under section 65(8) of the Evidence Act MFI P14(b). 63. Upon cross-examination by Mr. Asiji, PW7 stated that he was not a handwriting expert, dealt only with electronic evidence, and did not understand the Luhya language in the recordings. He was therefore not familiar to the contents of the audios, which were to be translated by the investigating officer. 64. PW8 Kiza Shako and testified on oath and stated that she was based at the Police Surgery, Nairobi Area. PW8 recalled that on 5th June 2015, she examined Razia Kayani, who was reported to have been assaulted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 6

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65. Upon examination, she observed a healed laceration on the right side of the scalp toward the back of the head, which she assessed as having been caused by blunt trauma. She noted that the patient had previously been treated at Aga Khan Hospital prior to her examination. PW8 assessed the degree of the injury and completed a P3 form, which she intended to produce as Exhibit P3 in court. 66. Upon cross-examination by Mr. Asige on behalf of the accused, PW8 stated that she could not recall if she had treated the accused persons directly. She confirmed that the injuries she observed on PW2 were caused by blunt trauma but clarified that she could not determine the object used to inflict the injuries nor identify the person responsible. SUMMARY OF THE DEFENCE 67. DW1 Josephine Khatenje testified that she was unemployed at the time of testifying and denied committing any offence, confirming that she was actually a victim of the robbery, having been raped by the perpetrators. 68. She stated that the events surrounding the case led to her father’s death. She further alleged that her employer did not understand the people responsible for the incident. She claimed that PW3 owed her money which he had failed to repay. 69. Upon cross-examination by Mr. Koech, Josephine stated that she had worked for two years and seven months and that she and the complainants shared the compound gate. She denied having brought the thieves into the Rajani residence. She further stated that she was raped in the servants’ quarters bathroom and that her employer, Ken, had locked her in the bathroom, later opening for her. She denied that she opened the gate for David, the driver, or facilitated entry for the robbers, describing these claims by PW1 and PW2 as lies. 70. DW1, Josephine also denied seeing Accused 2, her cousin, at the scene of the robbery and stated that he was not among the perpetrators. She explained that police took her to the hospital after the incident and that her medical records were with her legal counsel, who had not brought them to court. She further stated that she had personally assisted police in locating where Accused 2 was arrested. She confirmed her interactions with Mutiso, explaining that she had requested his phone to make a call because she had lost her own. ANALYSIS AND DETERMINATION DUTY OF THE FIST APPELLATE COURT 71. This is a first appeal by the appellant following her conviction and sentence by the lower court. The duty of this court in determining the appeal is as espoused in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court 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.” 72. This court has summarized the evidence tendered by the prosecution in extenso to lay out the facts of the case as presented to the trial court. It is clear from the grounds of appeal that the appellant contends https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 7

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that prosecution did not establish the case against her and that her conviction and sentence ought to be quashed. 73. The appellants contends that the trial court relied on circumstantial evidence to convict her and that according to her the circumstantial evidence was insufficient to connect her with the robbery. 74. The appellant denied committing the offence and maintained that she was a victim of the robbery as well. According to PW1 and PW2 who were the victims of the offence in the charge leading to her conviction, the appellant is the person who rang the bell to their house and made them to open the door thereby letting in the robbers into the house. 75. PW1 and PW2 gave evidence to the effect that Josephine came in the company of a man whom she said was an electrician who wanted to read their electricity meter and when PW1 opened the door that was when a man drew a gun and pointed it at her. 76. According to PW1 the purported electrician hit her and he was immediately joined by three other men. As a result of the beating, she received from the robbers, PW1 bled profusely and they robbed her off money. It was about 1:30 p.m during the day when the incident happened and that the robbers were not wearing any masks as they went about committing the robbery. 77. As the robbers picked the items in the house PW1 stated that Josephine stood at a verandah next to her bedroom. 78. The evidence of Pw1 and Pw2 placed the appellant at the scene of crime a fact she does not dispute. 79. The witnesses also testified that they were injured in the course of the robbery thus establishing the ingredient of violence in a robbery with violence case. The fact of injury to Pw1 was supported by medical evidence. The key ingredients of the offence of robbery were all brought out by the prosecution. 80. In Johana Ndungu -V- Republic CRA 116/1995 (1996) eKLR, the Court of Appeal set out the following as the ingredients that need to be proved “ (i) if the offender is armed with any dangerous or offensive weapon or instrument; or (ii) if he is in company with one or more other person or persons; or (iii) if at or immediately before, or immediately after the time of the robbery, he wounds, beat, strikes or uses any other violence on any person” 81. The evidence also shows that items that were capable of being stolen were carted away by the robbers and in the course of robbery the victims were beaten therefore the offence of robbery with violence was complete in all its elements since the robbers were more than one and that they were armed. 82. The issue that remains to be resolved in the matter is whether the appellant was part of the gang that committed the robbery against PW1 and Pw2 or she was a victim as she alleged. 83. The evidence PW1 reveals that there was sufficient lighting in the room when the robbery was taking place and it was the appellant who opened the gate for the robbers. 84. PW1 went further to state that at some point Josephine went to the gate to open for David a driver of one of PW1’s neighbors and during that time the robbers continued stealing and did not appear scared even as Josephine went to open the gate. That piece of evidence speaks directly to the issue of joint offenders in law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 8

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85. The conduct of the appellant during and immediately after the robbery cannot escape the scrutiny of this court. It is trite law that under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. 86. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238: “Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.” 87. The appellant in this case was said by Pw1 and Pw2 to be the person that rang the bell to their and hence caused them to open the door and it was courtesy of her action that the robbers gained entry into the house. 88. The appellant claimed in her defense that she was actually raped by all the robbers but that defense appears just like the learned honorable magistrate noted to have been a carefully crafted narrative to avoid taking responsibility for leading the robbers to the house of Pw1 and 2. The appellant did not at anytime from the evidence of the witnesses leave the house and one therefore wonders at what point did the alleged rape occur. 89. Secondly, all the circumstances pointed to her complicity in the robbery. The fact of her being instructed by the robbery to go to the gate and open for the driver and her cooperation in that regard irresistibly point to a person who was a willing participant in the robbery and not a victim as she alleged. The circumstantial evidence supports such an inference since she had the opportunity to run out of the compound and call out for help when she went to the gate but apparently did not do so allowing the robbers in the house to complete their mission with ease. I find that such is not the conduct of a reasonable man of sound mind who is a victim of crime. Being given an opportunity to escape and electing to return to the house instead shows that the appellant was part of the gang. 90. In Republic v Mohammed & another (Petition 39 of 2018) [2019] KESC 48 (KLR) (15 March 2019) (Judgment) (with dissent - MK Ibrahim & SC Wanjala, SCJJ) the Supreme Court held;“ Circumstantial evidence was like any other evidence. Though, its probative value should be reasonable, and not speculative, inferences ought to be drawn from the facts of a case. In contrast to direct testimonial evidence, it was conceptualized in circumstances surrounding the disputed questions of fact. Circumstantial evidence should never be given a derogatory tag. For a conviction to be sustained on the basis of circumstantial evidence, the chain of events had to be so complete that it established the culpability of the respondents, and no one else, without any reasonable doubt.” 91. The case against the appellant rested on both circumstantial and direct evidence of participation. The two taken together lead to the inescapable conclusion that the appellant was a willing participant in the robbery and had she not cooperated with the other robbers perhaps PW1 and PW2 could not have fallen victim. 92. The Supreme Court of Nigeria in Bakare vs State (1985) 2 NWLR stated as follows:stated as follows: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 9

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fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.” (emphasis added). The standard of proof beyond a reasonable doubt represents the highest evidentiary threshold in our legal system. This stringent requirement exists precisely because an individual's freedom hangs in the balance during criminal proceedings, reflecting our judicial system's commitment to protecting liberty interests. In the locus classicus case of Denning J, as he then was in Miller Vs Ministry of Pensions [1947] 2 AII ER 372 he “ Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says, not admit of plausible possibilities and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.” 93. The evidence adduced against the appellant in my view satisfied the threshold required and there was no doubt that she aided the robbers in committing the robbery thus she was guilty as a principal offender. 94. Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238: “ Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.” 95. The prosecution failed in its duty by failing to call the investigating officer and as the magistrate noted, whether that was by design to make the case crumble, thus court will not venture into speculation but certainly the prosecution ought to have done better considering that the two witnesses who did not testify were police officers. The primary duty of the service is to protect the people and their property. Police witnesses cannot therefore enjoy the luxury of choosing which cases to appear and give evidence and which not to. The prosecutor should have escalated the matter to those in authority to deal with such a lapse decisively. That said the failure to call the two was not fatal to the prosecution case because there was sufficient evidence from the rest of the witnesses to establish the case. 96. In Lydia Wamaitha Wambui v Republic [2019] KEHC 8445 (KLR)“ Justice Kimaru (as he then was) in convicting the Appellant stated that the trial court held that the Appellant’s act of firing the gun amounted to aiding and abetting the man in robbing the complainant. Section 20 of the Penal Code provides as follows with regard to principal offenders: 1. “When an offence has been committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 10

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(a) Every person who actually does the act or makes the omission which constitutes the offence; (b) Every person who actually does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) Every person who aids or abets another person in committing the offence; (d) Any person who counsels or procures any other person to commit the offence; and in the last mentioned case he may be charged either with committing the offence or with counselling or procuring its commission. 2. A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. 3. Any person who procures another to do an act or omit to do any act of such a nature that if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind and is liable to the same punishment as if he had himself done the act or made the omission and he may be charged with doing the act or making the omission.” The evidence of PW1 that the Appellant fired the gun during the robbery was corroborated by PW4. PW7 stated that after his investigations, he discovered that the man who robbed the complainant was known to the Appellant. He stated that the said man was the Appellant’s boyfriend. He recovered photos from the Appellant’s house where the Appellant appeared with the said man. The same were produced in evidence. From the facts of the case, the Appellant was not coerced by the man to fire the gun. She fired the gun on her own free will. In fact, when the complainant asked the Appellant if she wanted to kill her, the Appellant casually replied that she was only testing the gun. In the case of Shadrack Kinyanjui Mugo & Another v Republic [1995] eKLR, the Court of Appeal held thus: “It does therefore appear to us that although to constitute an aider and abettor some active steps must be taken by word, or action with the intent to instigate the principle or principals, the question of what amounts to encouraging is one of fact in each case”. By her action of firing the gun, the Appellant instilled fear among those who were at the bar. Her actions encouraged and assisted in commission of the crime. Aiding and abetting is defined in Black’s Law Dictionary to mean “assisting or facilitating the commission of a crime, or to promote its accomplishment”. The motive for committing a criminal offence is normally irrelevant as provided under Section 9(3) of the Penal Code. The Appellant’s defence that she left the bar at 9.30pm was displaced by PW1 and PW4 who placed her at the scene of crime when the robbery was committed. PW also testified that he arrested the Appellant at the complainant’s bar the following morning. The circumstances surrounding the Appellant’s involvement are sufficient to uphold a conviction for aiding and abetting commission of the robbery. She was therefore a principal offender in the present offence.” 97. The decision captures a scenario akin to the present case only that the appellant in this matter did not assault the victims but aided in letting them into the house. 98. The court has reviewed and taken into account the submissions of all the parties but it is the finding of this court that the offence was adequately proved thus the conviction was safe. 99. As regards sentence, this court is minded to review the same considering that the 2nd accused in the lower court was sentenced to serve 10years imprisonment, there was no justification in imposing https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 11

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15years imprisonment against the appellant. I find that to have been discriminatory and goes against the provisions of Article 27 of the Constitution. 100. All persons are equal before the law and sentencing must not be discriminatory. I hereby reduce the sentence to an imprisonment term of 10 years from the date she was placed in custody. 101. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF FEBRUARY, 2026. A. M. MUTETI JUDGE In the presence of Habiba: Court Assistant Ms Sang/Ms Linda Nchaban for Appellant Ms Ogega for the Respondent Appellant : Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11618/eng@2026-02-17 12

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