Republic v Mwita

Nyasian told him to sit down. PW1 fell down with the motorcycle and they started beating him with pangas and rungus. He said Nyasiani had a panga while Bonface and Mogesi had rungus. 4. PW1 said he cannot recall what the attackers told him when they were beating him. When he was beaten Daniel ran away. The attackers took his Kshs. 30,000/= cash which was in his pocket. They also took his motorcycle. The complainant added that they searched him before they took the money. He did not know who took the money. 5. The motorcycle was his being registration number KMEX 926N. Dan came and took him to Isebania Sub County Hospital where he was treated. He then reported the matter at Isebania Police Station. His P3 form was duly lled. 6. After two weeks he went back at the station where he was arrested for assaulting a person. Mogesi was later arrested in his presence and charged. Boniface was arrested but he was released. He had known the attackers before as they were family members. That they have a land dispute with the attackers. 7. PW1 was told that the motorcycle was at the station. He bought the motorcycle from Peter John Chacha vide an agreement dated 20/6/2023. He identied the motorcycle as PMFI-1, treatment notes as PMFI-2, P3 Form as PMFI-3, Agreement dated 20/6/2023 as PMFI-4 and loan completion as PMFI-5. 8. PW2 a cinical ocer produced the treatment notes and P3 form as exhibits 2 and 3 respectively. She said on examination the complainant had a swelling on the neck and bruises. A diagnosis of soft tissue injuries was made. The age of injuries was six days old, caused by a blunt force. She classied the degree of injuries as harm and were consistent with a person who was assaulted. 9. PW4 investigated the case and charged the accused. She said the motorcycle was brought at the station by members of the public who said the complainant had run away from the scene. She produced the sale agreement as exhibit-4, the loan completion form as exhibit-5 and the motorcycle as exhibit-1. The prosecution then closed its case. The Accused’s Defence Case 10. DW1 Stephen Mwita Mogesi the accused gave sworn defence and denied the charges. His defence was that on 21/8/2025 at 8:00pm he was at home. On 22/8/2025 a villager came in the morning and told him that there was an attack at night. He went to the scene where he found people who told him that Vincent Moseisi Chacha had cut Boniface Wegesa Mosaisi. He went to the hospital where he found he had been injured and reported the matter to the assistant chief. 11. He went to state that the complainant is his brother in the family and owns a red motorcycle. They share a boundary with Vincent. One day Vincent cut a lady by the name Kadogo and he was her witness in that case and Vincent was not happy with him. 12. DW2 Boniface Wegesa Sabura At 11;00PM he was at his cousin’s place when Vincent came while drunk and holding a bottle in the hand. He started threatening people. Daniel Sabora calmed him down in vain. Vincent claimed to be rich and had sired sons. They started laughing, that is when Vincent pulled out a panga and cut him on the left hand. DW2 said he was taken to Isebania Police Station where he reported the matter and went to Isebania Sub County Hospital but he was not treated and he went to Imali hospital where he was treated. 13. DW3 Silas Nyasang’i Nyangwala testied that on 21/8/2025 he was at the home of Daniel Sabora for a ceremony. At night Vincent Mosaisi came while holding two beers in his hands. They were sitting https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/848/eng@2026-08-27 2

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on a bench preparing to slaughter a cow. Vincent then started saying that he has sired sons and not daughters. Boniface laughed that is when Vincent pulled out a panga and cut Boniface. 14. They started screaming and Vincent disappeared into darkness. They then took Boniface to hospital where Vincent came on a motorcycle, stopped and started screaming and he rode away. They reported the matter to police. While at Imali hospital they called Vincent who said he was in Migori hospital but his motorcycle was at the gate. DW3 called Bonface parents who came with other people and they took the motorcycle to Isebania Police Station. They pushed the same to the station and handed it to Pc Kibet. He said he had known the motorcycle as belonging to Vincent. 15. DW4 Mary Sabora evidence was that on 21/8/2025 at 11:30pm she was in her house sleeping when she received a phone call from Nyasiani who told her that Boniface had been cut by Vincent and they were at the hospital. She called her neighbours and they went to the hospital at Isebania Sub County Hospital. He was not treated there and they went to Imali hospital. She told Nyasiani to call Vincent, which he did and Vincent said he was in Migori. 16. DW4 said Vincent’s motorcycle was at the Isebania Sub County Hospital which they took to Isebania Police Station and handed it to Pc Kibet. She said Vincent’s motorcycle was not stolen as he left it at the hospital gate when he saw members of the public. The accused then closed his defence case. The Law 17. The oence of robbery is dened under Section 295 of the Penal Code as follows; “ Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.” 18. Section 296(2) of the Code then denes “robbery with violence” and also sets out the sentence to be meted out to the oender as follows; “ (2) 19. If the oender is armed with any dangerous or oensive 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, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” In Johana Ndungu V. Republic, CR. APP. No. 116 of 1995 the Court extrapolated the position as follows: “ In order to appreciate properly as to what acts, constitute an oence under section 296(2) one must consider the sub-section in conjunction with s. 295 of the Penal Code. 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. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s. 296(2) …”(See also Ganzi & 2 Others V. Republic (2005) 1KLR 52). https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/848/eng@2026-08-27 3

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20. 21. The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the oence as follows: “ i. The oender is armed with any dangerous and oensive weapon or instrument; ii. The oender is in company with one or more persons; iii. At or immediately before or immediately after the robbery, the oender uses actual violence on the victim” In Dima Denge Dima & Others Vs. Republic, Criminal Appeal No. 300 of 2007 the Court stressed this point when it stated as follows: “ …The elements of the oence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sucient to found an oence of robbery with violence.” 22. In this case the burden of proof is on the prosecution. It is anchored in the constitutional imperatives of presumption of innocence and the right against self-incrimination. The burden of proof is always on the prosecution and it never shifts to the defence. In Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR, the court, Justice R. Nyakundi, stated as follows: “ As to what constitutes the burden of proof beyond reasonable doubt the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 provides as follows in a passage alluded to me considered the greatest jurist of our time Lord Denning:“That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suce.” 23. In our criminal justice system there is no duty on the accused to prove anything on the allegations of a criminal nature led by the state in a court of law. Guided by the above authorities I need to determine if the prosecution has proved beyond any reasonable doubt the oence of robbery with violence. The rst issue for determination is whether the accused was properly identied by the complainant 24. This is an oence that is alleged to have occurred at night at 11:00pm, thus there is need to determine if the accused was properly identied by the complainant. The only evidence on identication is that of the complainant alone. 25. The court cannot convict an accused person based only on the evidence of identication unless the court is sure that the identication of the accused as the person who committed the oence is proved beyond any reasonable doubt. Refer to the case of Maitanyi v Republic (1986) KLR 198 where the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/848/eng@2026-08-27 4

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Court of Appeal had this to say in respect of evidence of identication, especially in regard to the evidence of identication by a single witness:“ In this case there is no other evidence, circumstantial or direct. The decision must turn on the need for testing with the greatest care the evidence of this single witness. Is that what the courts below really did? It must be emphasized that what is being tested is primarily the impression received by the single witness at the time of the incident. Of course, if there was no light at all, identication would have been impossible. As the strength of the light improves to greater brightness, so the chances of a true impression being received improves. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by, there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of senior magistrates trying cases of capital robbery to make these inquiries themselves. Otherwise who will be able to test with the “greatest care” the evidence of a single witness? There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identication of his or her assailants, to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the other hand the witness says that he or she could not identify or recognize the person, then a later identication or recognition must be suspect unless explained. It is for the magistrate to inquire into these matters.” 26. In the case of Wamunga vs. Republic (1989) KLR 426 the Court of Appeal it was held thus: “ It is trite law that where the only evidence against a defendant is evidence of identication or recognition, a trial court is enjoined to examine such evidence carefully and to be satised that the circumstances of identication were favourable and free from possibility of error before it can safely make it the basis of conviction.” 27. I am also aware of the guidelines set by the Court of Appeal in the case of Mwaura vs. Republic [1987] KLR 645, wherein it was held, inter alia, that: “ In cases of visual identication by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”. 28. In our instant case the complainant said that on 21/8/2025 at 11:00pm he found three people at his gate namely BONIFACE WEGESA, MOGESI MWITA and NYASIAN NYANGWARA. He used the motorcycle lights and security lights to see the said people. That is when NYASIAN told him to sit down. He then fell down with the motorcycle and they started beating him with pangas and rungus. The complainant did not tell the court the length of time he had for seeing who was doing what is alleged, the position from the accused and the quality of light from the motorcycle and security light. Further the complainant did not tell the court if he was able to see the attackers faces. There is no evidence on record showing that the complainant stated that he saw the face of the accused. Guided by the above cited authorities I nd that the complainant did not positively identify the accused person. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/848/eng@2026-08-27 5

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Was Anything Stolen from the Complainant 29. On this issue the complainant alleged that the attackers took his Kshs. 30,000/= that was in his pocket. The complainant did not tell the court in which pocket the money was in. He also said that his motorcycle was stolen. The defence evidence shows that it is the accused who assaulted DW2. When DW2 was being taken to hospital the accused overtook them and stopped in front of them on his motorcycle and started screaming and rode away. When they reached at the hospital they found complainant’s motorcycle at the gate. They called him and he said he was in Migori hospital. DW3 and DW4 said they pushed the motorcycle to the station and handed the same to PC KIBET. If indeed the motorcycle was stolen I doubt if DW2 who is mentioned by complainant as one of the attackers could take it to the police station. 30. The defence evidence shows that it is the accused who assaulted DW2 and his report to the police station was just a cover up. The complainant was convicted and he is currently serving a sentence for the oence of grievous harm against DW2. I nd that the prosecution has not been able to prove that anything was stolen from the complainant. 31. These two issues have created doubt in the prosecution case and the oence of robbery with violence cannot be sustained against the accused person. In conclusion, I nd that the prosecution has not been able to prove its case beyond any reasonable doubt and, nd accused not guilty as charged with the oence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. In the end I acquit him under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 27TH DAY OF AUGUST, 2026 VIA MICROSOFT TEAMS VIRTUALLY. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Mang’era/Enock………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili Advocate for accused……Mr. Kembe present https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/848/eng@2026-08-27 6

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