Stephen Omondi Ochieng & 1 other v Republic

The court adopted the Johanne Ndungu formulation that the three sets of circumstances in section 296(2) are mutually exclusive and any one, once proved, sustains a conviction. The complainant testified he was robbed by persons armed with pangas and injured on the hand, knee and shoulder, with the clinical officer corroborating sharp-object injuries. More than one person was involved. The elements were therefore established and the concurrent findings below stood.

Relying on Isaac Ng'ang'a Kahiga and Peter Kariuki Kibue, the court restated the four requirements of recent possession. The complainant's phones were recovered from the appellants upon arrest, retained as exhibits and produced in court. The appellants, in their defences, offered no explanation as to how the phones came into their possession, raising the rebuttable presumption that they were among the robbers. Visual identification in darkness was thus not the sole basis of conviction.

The court cited R v Chengo (Supreme Court) for the principle that the right to legal representation at State expense is available only if substantial injustice would otherwise result, and David Macharia Njoroge for the rule that persons accused of capital offences have that right. However, the appellants did not demonstrate they met the criteria, and in any event the ground was never canvassed before the High Court, so the Court lacked jurisdiction to entertain it on second appeal.

The appellants relied on Muruatetu 1, but the court invoked the Supreme Court's Muruatetu 2 directions confining Muruatetu 1 to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code. Considering the circumstances of the robbery and the violence used, the court held the death sentence commensurate with the charge and upheld it as legal and proper.