Republic v Juma alias Kehogo & 3 others

immediately before the time of such robbery you struck the said PAULINE ROBI MUHIRI with a nut headed club The Prosecution Case 3. The prosecution called Seven witnesses namely: 1) PAULINE ROBI MUHIRI (complainant) (PW1) 2) MOGOSI MWITA NYAMBOBE (complainant) (PW2) 3) EMMANUEL CHACHA GITIRO (PW3) 4) ELIJAH MWITA (PW4) 5) NO. 239274 CI WANYOIKE PAUL MAINA (PW5) 6) NO. 237132 IP KORIR FREDRICK (PW6) 7) NO. 254420 PC BENARD ODHIAMBO (PW7) 4. The prosecution case was that PW1 on 3/11/2025 at 8:00pm she was outside the house and wanted to update her phone. After updating her phone four people emerged and stood in front of her. They told her that wife of Muhiri switch off the phone. She was afraid and one took the phone and switched it off. Two held her both hands. One went behind her while armed with a gun. She said it was a large black gun which he was on the shoulder and holding with the right-hand. 5. One had a knife, panga and rungu and he is the one who took the phone. She was able to see the one who took her phone as he had spectacles. She had not known him before. She used the torch light to see him as he took the phone and switched it off. She was able to see the one who had the gun as he had not covered his face. She can identify him if she sees him. 6. The attackers then pulled her taking her to the house. She was with her daughter called VERONICA. When her daughter wanted to enter into the house one attacker held her. Two attackers took her into the house but were KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 2

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not armed. One who had the gun fired two shots. This happened outside the house. 7. In the house PW1 said she was with her in-law EMMANUEL, MOGOSI and SARAH. In the house there was the D-Light bulb and they were ordered to give out money. The attackers ordered the people who were inside the house to sit down. That is when MOGOSI told them that she had no money. 8. MOGOSI was then hit on the head with a rungu. She went into the bedroom and gave them her purse and they removed Kshs. 3,000/=. PW1 told the thugs not to kill her but go to her house and give them money. They proceeded to her house where she lifted up the mattress and they took her Kshs. 49,000/=. 9. The thugs then started beating her with a panga while demanding for more money. She was slapped on the back with the panga. She said she had sold gold and gotten the Kshs. 49,000/=. They demanded for gold as she was hit on the head which cut her on the left side. She told then she did not have gold. They went back to the house of MOGOSI where they took EMMANUEL and beat him on the legs and forehead using a rungu as she stood at the door. The one who had a gun pinned it on EMMANUEL ribs and asked if he can finish him but he was told that is not Muhiri. The fired four times in the air and left. 10.When the attackers left they started screaming and people came around. They went to Kehancha Sub County Hospital with MOGOSI where they were treated and they went back home. They were told police had visited the area and they slept 11.In the morning the DCI officers came and recovered spent cartridges and they came at Kehancha where she recorded her statement. She identified her treatment notes and P3 Form as PMFI-1 & 2 respectively. After one week KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 3

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she went to the police station for identification parade after they were told that some people had been arrested. At the parade she said she was able to identify two people. That is the one who had a rungu and gun. The 2 nd accused is the one who had panga, rungu and knife. The 1 st accused is the one who had a gun. She identified the ID Parade form as PMFI-3. She said the 3rd accused was on the ID Parade but she did not see him on the night of the attack. The 4th accused had a panga and remained at MOGOSI’s door. She did not know how he was arrested. 12.PW2 evidence was that on 3/11/2025 at around 8:45pm she was at home in her house. She was with EMMANUEL CHACHA and PW1 ready to eat when people entered into the house with PW1 who had gone outside to open her phone. Two people held PW1 by the hand when they came into the house and one held EMMANUEL and started beating him with a rungu. One person stood at the door and the other came to where she was and demanded for money. The said person had a panga and rungu and was taller than her. The one who was at the door had a panga, rungus and knife. He handed over one rungu to the tall guy who used the said rungu to hit her on the forehead and demanded for money. When she turned she was hit with a rungu on the back. She went and brought her purse and they removed Kshs. 3,000/=. 13.The attackers then took PW1 to her house where she gave them money. PW2 said she saw three people each armed with a gun. She said she was able to see them using the moonlight. The attackers came back from the house of PW1 and demanded for gold that they had bought. She screamed and the thugs went away. She said she did not identify anyone. After the attackers went away people came around and she went to Kehancha Sub County Hospital where she was stitched. She identified her treatment notes as PMFI-4 and P3 Form as PMFI-5. KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 4

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14.PW2 said she touched a person on the identification parade but he was not among the people who attacked her. The said attackers are not in court. 15.PW3 evidence was that on 3/11/2025 at 8:42pm he was at home in the house when he heard gun fire outside. He went out and met the attackers at the door. He was beaten using a rungu all over the body. He sat down as they entered inside the house. PW2 was beaten using a rungu and gave out Kshs. 3,000/= and PAULINE gave out Kshs. 49,000/=. The thugs shot at him but it missed and they went away. He saw about six people but he was not able to identify any of the attackers as it was at night. 16.Police visited the scene and he recorded his statement. After a few days they were called at the police station. An identification parade was done and he was able to identify a person he thought he saw on that night. The said person is not in court. He identified the ID Parade form as PMFI-6. He was treated at Kehancha Sub County Hospital and identified his treatment notes as PMFI-7 and P3 Form as PMFI-8. 17.PW4 produced the treatment notes and P3 Forms marked as PMFI-1, 2, 3,4,5,7 & 8 as exhibits 1, 2, 3,4,5,7 & 8 respectively. He said on examination the patients’ sustained injuries whose degree was classified as harm for each. 18.PW5 produced the ballistic report as exhibit-11. He said the cartridges marked H1 & H2 were fired in one gun and high chances are that it was an AK 47 rifle. 19.PW6 conducted identification parade and 1st suspect PAU MWITA JAMES was identified by witness number 2 by touching him. The second suspect was SAMUEL MARWA KEGOCHA who was identified by witness number 1 by touching. Kehego Juma Mwita was identified was identified by KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 5

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witness number 2 & 3 by touching. He produced the identification parade form as exhibits 3, 6 and 12 respectively. 20.PW7 investigated the case and charged the accused persons. He produced the spent cartridges as exhibit 9(H1 &H2), exhibit memo as exhibit-10. The prosecution then closed its case. The Accused Defence Cae. 21.The accused persons were placed on their defence and gave sworn defence. DW1 JULIAS MWITA JUMA said on 3/11/2025 he does not know what happened. He can only remember the day he was arrested. He had not known the co-accused before the start of this case. 22.DW2 PAUL MWITA JAMES denied the charges. His defence was that on 3/11/2025 he was at a ceremony at his in-laws place. The ceremony started at 5:00pm and stayed there till 4/11/2025. He does not know the other coaccused parsons. 23.DW3 SAMWEL KEGOCHA MARWA denied the charges. His defence was that he does not know what happened on 3/11/2025. He left the mining site and was arrested. He does not know the other co-accused persons. 24.DW4 JACKSON MATIKO denied the charges. His defence was that he does not know what happened on 3/11/2025 but can only recall when he was arrested. He does not know the other co-accused persons. He has never been arrested before. The accused persons then closed their defence case. The Law 25.The offence of robbery is defined 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 KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 6

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retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.” 26.Section 296(2) of the Code then defines “robbery with violence” and also sets out the sentence to be meted out to the offender as follows; “(2)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, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 27.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 offence 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 presupposed in the three sets of circumstances prescribed in s. 296(2) …”(See also Ganzi & 2 Others V. Republic (2005) 1KLR 52). 28.The Court of Appeal in Oluoch v Republic [1985] KLR set out the essential elements of the offence as follows: “i. The offender is armed with any dangerous and offensive weapon or instrument; ii. The offender is in company with one or more persons; KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 7

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iii. At or immediately before or immediately after the robbery, the offender uses actual violence on the victim” 29.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 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.” The Burden of Proof 30.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 deflect 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 suffice.” KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 8

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31.In our criminal justice system there is no duty on the accused to prove anything on the allegations of a criminal nature filed 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 offence of robbery with violence. The first issue for determination is whether the accused was properly identified by the complainant 32.This is an offence that is alleged to have occurred at night at 8:45pm, thus there is need to determine if the accused persons were properly identified by the prosecution witnesses. In our instant case PW2 and PW3 in examination in chief they said they did not identify anyone among the attackers. The only evidence on identification is that PW1alone. 33.The court cannot convict an accused person based only on the evidence of identification unless the court is sure that the identification of the accused as the person who committed the offence is proved beyond any reasonable doubt. Refer to the case of Maitanyi v Republic (1986) KLR 198 where the Court of Appeal had this to say in respect of evidence of identification, especially in regard to the evidence of identification 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, identification would have been impossible. As the strength of the light improves to greater brightness, so the chances of a true impression being KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 9

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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 identification 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 identification or recognition must be suspect unless explained. It is for the magistrate to inquire into these matters.” 34.In the case of Wamunga vs. Republic (1989) KLR 426 the Court of Appeal it was held thus: - KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 10

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“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.” 35.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 identification 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”. 36.In our instant case PW2 said that she did not identify anyone during the attack. She further stated that on the identification parade she touched on a person who was not among the attackers. Her evidence waters down and makes the identification parade evidence suspect. The truth according to PW2 she did not identify the attackers. 37.PW3 was categorical that he was not able to identify any of the thugs as it was at night. An identification parade was done and he was able to identify a person he thought he saw him on that night. The said person is not in court. This clearly shows that PW3 did not identify any of the attackers and this leaves the identification parade evidence without any foundation. 38.PW1’s evidence on identification was that when the attackers told her wife of Muhiri, switch off your phone, she was afraid and one took the phone and KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 11

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switched it off. She said the one who took her phone had spectacles and she had not known him before. She used the phone torch light to see him as he took the phone and switched off. She was able to see the one who had the gun as he had not covered his face. When an identification parade was done she was able to identify the 1st accused as the one who had the gun and the 2nd accused as the one who had the panga, rungu and knife. She said the 3 rd accused was at the identification parade but she did not see him on the night of the attack. She said the 4th accused had a panga and remained at Mogosi’s door. 39.From the above evidence it is clear that PW1 did not identify the 3 rd accused person as one of the attackers on that fateful night. Further there is no evidence on record showing that the 4th accused was identified by the witnesses on the night of the attack. The investigating officer stated that the victims identified the 4th accused while they were at the hospital but they did not disclose what he did at the scene. If indeed the 4 th accused was identified by the victims then they would have been able to disclose what he did at the scene to the investigating officer. This means that he was not properly identified by the victims. 40.The evidence of PW1 on identification of the 1 st and 2nd accused is wanting. I say so as the intensity of the light she used to identify them was not disclosed. The proximity of the said accused to the light was not given. She did not tell the court how long were the two accused under observation to be able to tell she properly identified the two accused, given that she was frightened when she was ordered to switch off the phone. Further the investigating officer did not tell the court that PW1 gave any description of the attackers when she reported the matter to the police. PW1 herself also KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 12

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never told the court the description she gave to the police of the attackers she was able to identify. 41.Putting all these together it is my considered opinion that the accused persons were not properly identified by the prosecution witnesses. Without proving this issue, I find no need to belabor myself in determining other issues. 42.In conclusion I find that the prosecution has not been able to prove its case beyond any reasonable doubt. In the end I find the accused persons not guilty as charged with the two counts of robbery with violence under section 296(2) of the Penal Code and acquit them under section 215 of the Criminal Procedure Code. Dated, Signed and Delivered in open Court at Kehancha on this 10 th day of September, 2026 virtually via Microsoft Teams J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Kigera………… Court Assistant Accused …………….. 1,2,3 &4 all Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili Advocate for accused persons….Mr. Kembe present KEHANCHA SPMC CR NO. E476 OF 2026 (RULING) 13

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