Francis Mutuku Musyoka & another v Republic

3. The brief facts that gave rise to the case were that on the morning of 31st December 2013, Kennedy Okango Obunga (PW 1), together with his wife went to Luanda branch of the Kenya Commercial Bank where he withdrew Kshs.106,000/=. As PW 1 approached his home at about 10.00 am, a white saloon car Registration No. KBS 332L that had ve occupants appeared. One of the occupants in the car greeted PW 1 and he responded. Suddenly four people came out of the car and the person who had greeted him said that they were police ocers who were looking for a suspect. One of the men who was wearing a jungle green jacket told PW 1 that he was the suspect and proceeded to handcu him and place him under arrest. He was thereafter shoved into the rear of the car and told to lie on the oor. 4. Those happenings were witnessed by Nelson Hezekiah Alumere PW 7, who corroborated the evidence of PW1. Meanwhile the alleged police ocers started beating PW 1 and stole from him Kshs.106,000/ = and also took the KCB and Co- operative bank ATM cards and demanded his PIN number. The robbers withdrew a sum of Kshs.5,000/= from PW 1’s KCB bank account at KCB Mbale branch. 5. The robbery was reported to the police and investigations commenced. On 15th January 2014 PW 1 attended an identication parade that was conducted by Inspector Pius Nzioki, PW 4. PW 1 identied the two appellants. He said that the 1st appellant was the one who had a jungle green jacket, while the second one was the one who waved at him and greeted him on his way to his house from the bank. 6. The investigation ocer, PC Jillo Kombo, PW 9 testied that two weeks after PW 1 was robbed, a similar robbery was committed at a neighbouring area, involving ve men who were in a motor vehicle. The police intercepted the motor vehicle and arrested two suspects who were taken to Vihiga Police Station where an identication parade was conducted and the two appellants were duly identied by PW 1. 7. The appellants denied having committed the robbery. The 1st appellant said that he was a police ocer and on 31st December 2013 he was on duty at Rumuruti in Laikipia West; that on 15th January 2015 he was at Siaya Law Courts when he was requested to go to Vihiga Police Station, but upon getting there he was arrested and remanded in custody and thereafter requested to participate in an identication parade where he was identied by PW 1 as one of the people that had robbed him. 8. The 2nd appellant testied that he was a businessman in Nairobi; that on 31st December 2013 he was at his home in Embu County celebrating the end of the year; that on 15th January 2015 he was at Siaya Law Courts when he was informed that he was wanted by CID ocers from Vihiga; that he was taken to Vihiga Police Station and requested to participate in an identication parade where he was identied by PW 1 as one of the robbers. 9. Upon consideration of the prosecution and defence case, the trial court convicted the appellants of robbery as aforesaid and sentenced them to death as earlier stated. 10. In their rst appeal before the High Court, the appellants faulted the trial court for convicting them on insucient identication evidence. However, the learned judge held that the appellants were properly identied. The learned judge delivered himself as follows: “ 21. In this case the incident occurred in the midmorning hours in broad day light. PW 1 told the court that he was able to see the 2nd appellant (now 1st appellant) who greeted him. He also stated that the 1st appellant (now the 2nd appellant) who was wearing a jungle green jacket is the one who handcued him. After the assailants confronted him, they talked to him to inquire whether he was a suspect and then bundled him at the back of the vehicle where they continued to assault him while riding with him in the car. The assailants were not masked https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2292/eng@2025-12-19 2

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and given the time, which was over an hour, they were together with PW 1, I nd and hold these circumstances were favorable for positive identication.” 11. In their memorandum of appeal before this Court the appellants raised three grounds of appeal being: 1. The learned judge erred in law by upholding the appellants conviction and sentence by the trial court which was against the prosecution’s evidence to prove its case beyond reasonable doubt. (sic) 2. The learned judge of the superior court erred in law when he held that the appellant was properly identied by the prosecution witness whereas there was no mention or description of the appellant in the 1st report, and the prevailing circumstances were not favourable for positive identication. 3. The Judgment was against the weight of the evidence. 12. At the hearing of the appeal, the Court was informed that the 1st appellant was at large. As for the 2nd appellant he was represented by Ms. Pamela Omondi, who briey highlighted written submissions that she had prepared for and on behalf of the two appellants. 13. On the rst ground of appeal, the appellants submitted that the learned judge erred in nding that the elements of robbery with violence as stated under section 296 (2) of the Penal Code had been proved beyond reasonable doubt. It was submitted that PW 1 only testied that there were ve occupants in the motor vehicle that approached him near his home, but did not say that any of them were armed with any weapon; that no metal bars were retrieved by the prosecution from the motor vehicle, yet the charge sheet indicated that the appellants were armed with metal bars; and that also PW 7 who was said to have witnessed the incident did not testify that he had seen any of the assailants armed with any weapon. 14. Turning to the second ground of appeal regarding identication, it was submitted that the complainant did not give a description of his attackers for purposes of identifying potential suspects at an identication parade; that the learned judge failed to take into account the prevailing circumstances surrounding identication of the appellants, given that there were ve people when the complainant was robbed and he had never encountered any of them before; that the complainant was told to lie down in the motor vehicle and it was therefore impossible for him to have recognized them. 15. The 2nd appellant relied on the case of Ogeto v Republic [2004] KLR 19 where it was held that: “ It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identication evidence of such a witness especially when it is shown that conditions favoring identication were dicult. Further the court has to bear in mind that it is possible for a witness to be honest but to be mistaken.” 16. On the third ground there was no substantive submissions made by counsel. 17. Mr. Kilambyo, Assistant Director of Public Prosecutions, led submissions on behalf of the respondent. As to whether the ingredients of the oence of robbery with violence were duly satised, the respondent cited the decision of this Court in Oluoch v Republic [1985] where it was held that: “ Robbery with violence is committed in any of the following circumstances: a. The oender is armed with any dangerous and oensive weapon or instrument; or https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2292/eng@2025-12-19 3

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b. The oender is in company with one or more person or persons; or c. At or immediately before or immediately after time of the robbery the oender wounds, beats, strikes or uses other personal violence to any person….” 18. The respondent also cited various other decisions of this Court including Dima Denge Dima & Others v Republic, Criminal Appeal No. 300 of 2007 [2013] eKLR and Johana Ndungu v Republic [1996] eKLR. It was submitted that the use of the word “or’’ in the denition of the oence of robbery with violence under section 296 (2) of the Penal Code means that the proof of any of the above ingredients is sucient to establish the oence. It was further submitted that there was sucient evidence that the oenders were many; were armed with oensive weapons and at the time of the robbery assaulted the complainant. Consequently, the oence of robbery with violence was suciently demonstrated. 19. Regarding identication of the appellants, it was submitted that the rst appellate court extensively analyzed the evidence of identication of the appellants, and equally the rst appellate court carefully scrutinized that evidence, citing, inter alia, the case of John Njeru Kithaka & Another v Republic Criminal Appeal No. 436 of 2007 where it was held; “ On identication the law is now well settled and that is that a trial court has a duty to consider with utmost care, evidence of identication and recognition before it bases conviction on it. In particular if the conditions under which such identication is purported to have been made were not favourable.” 20. We have considered the memorandum of appeal in light of the submissions led by the appellants and the respondent and briey highlighted by both Ms. Omondi and Mr. Kilambyo. In our view, this appeal raises only two substantive grounds, that is, whether the ingredients of the oence of robbery with violence were proved beyond reasonable doubt, and whether there was sucient evidence of identication of the appellants to warrant their conviction. 21. Turning to the rst ground of appeal, that is whether the oence of robbery with violence as dened under section 296 (2) of the Penal Code was proved, as stated by both the appellants and the respondent, robbery with violence is committed in any of the following circumstances: i. Where the oender is armed with any dangerous and oensive weapons or instrument; or ii. The oender is in company with one or more person or persons; or iii. At or immediately before or immediately after the time of the robbery, the oender wounds, beats, strikes or uses other personal violence to any person. It is trite law that the above three elements of the oence are to be read disjunctively and not conjunctively, meaning that even one of the above elements is enough to found a conviction. See Dima Denge Dima & Others v the Republic (supra). 22. Both PW 1 and PW 7 testied that the robbery was committed by more than one person, and that the persons severely assaulted the complainant. PW 3, the medical ocer who examined and treated the complainant, also testied about the grave injuries sustained by the complainant at the time of the robbery. It matters not that none of the witnesses testied that the robbers were armed with dangerous weapons. We therefore nd that the oence of robbery with violence was duly proved by the prosecution and the two courts below did not err in their nding on that issue. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2292/eng@2025-12-19 4

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23. Turning to the ground of identication of the appellants, the rst appellate court held, inter alia, that: “ The sum total of the evidence is that PW 1 positively identied the appellants on the date he was robbed. Although he did not describe them to the police in his rst report, he was sure that he could clearly identify them if he saw them. When the police arrested persons in a robbery similar to the one which PW 1 was involved in, the subjects were subjected to an identication parade a fortnight after the incident and PW 1 was able to pick them out without any dicult.’’ 24. Looking at the evidence of PW 1, the complainant, he testied that the person who greeted him and said that they were police ocers and the other one who had a jungle green jacket, black trouser and a beret were among the ve robbers who attacked and robbed him on the material day. PW 1 said that he saw them clearly. Although he never gave their description to the police in his statement that he recorded on 31st December 2013, he however stated in his cross examination as follows: “ I was robbed on 31/12/13 and it is the same day I recorded my statement. I gave out description of the clothing 1st accused had. I said among them one of them was wearing a jungle uniform’’. 25. About two weeks after the robbery, PW 1 was able to identify the appellants at an identication parade that was conducted by PW 4, who testied in great details how the identication parade was conducted. 26. We do not agree with the 2nd appellant’s submissions that failure to give a description of the assailants before an identication parade is conducted per se renders the identication parade useless. The court must also consider all the relevant aspects relating to the complainant’s ability to positively identify his assailants. In this appeal, the robbery took place in broad day light and PW 1 was able to see how the two appellants were dressed and he was able to clearly explain the role played by each one of them during the robbery. The identication parade took place about 15 days after the robbery when the incident was still fresh in the mind of PW 1. 27. We agree with the rst appellate court’s reliance on the decision of this Court in Nathan Kamau Mugwe v Republic Criminal Appeal No. 63 of 2008 [2009] eKLR that failure to give the description of a suspect before an identication parade does not render the identication useless. In that case the court observed as follows: “James swore he saw the appellant from the time they met and negotiated the fare and was with him from the place of hiring up to the place where he was attacked and tied up. The appellant was sitting next to him on the front passenger seat. The trial Magistrate and the rst appellate court were satised that James had ample time to see the appellant during the period the two were alone in the vehicle and also at the beginning of the journey. James had no diculty in identifying him at a properly conducted identication parade…. We think the identication of the appellant was, in all the circumstances of the case, sound and even if the two courts below had excluded the evidence of Mwendo with regard to the parade, they would have inevitably come to the conclusion that the appellant had been properly and correctly identied as the person who had hired James at Cheers Makuti Bar and subsequently robbed him in the company of another person….. As to the complaint in ground six that the witnesses had not given to the police a description of the appellant before the parade, we do not think that failure to describe the person to be identied necessarily renders an otherwise valid parade worthless. Even in Gabriel Kamau Njoroge v Republic https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2292/eng@2025-12-19 5

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(1982 – 1988) 1 KAR 1134, the Court did not go so far as to say that a witness must be asked to give a description of the person to be put on the parade for identication. All the court said was that the witness “SHOULD” be asked…. It is not impossible to have a situation in which a witness can tell the police that though he cannot give a description of the person he had seen during the commission of an oence, yet if he (witness) saw that person again, he would be able to identify him. It would be wrong to deprive such a witness of an opportunity of a properly conducted parade to see if he can identify the person. Again, the police themselves may, through their own investigations, come to know that a particular person may have been involved in a particular crime though the witness or witnesses to that crime have not given a description of the suspect. Once again it would be wrong to deny the police the opportunity to put such a suspect on a parade to see if the witnesses can identify him. In either of the two cases, the parade cannot be held to have been invalid merely because the witnesses had not previously given a description of the suspect. The relevant consideration would be the weight to put on the evidence regarding the identication parade. We reject the contention that because James had not given to the police a description of the appellant, his evidence with regard to the identication parade ought to have been rejected.” 28. All in all, we nd this appeal devoid of merit. We uphold the judgment of the rst appellate court and dismiss the appeal in its entirety. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF DECEMBER, 2025. D. K. MUSINGA, (PRESIDENT) .................................... JUDGE OF APPEAL P. O. KIAGE .................................... JUDGE OF APPEAL G. V. ODUNGA .................................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2292/eng@2025-12-19 6

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