Kevin Matundura v Republic

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dangerous weapon namely Herstal machine gun rifle and blow pistol, they robbed James Wamugunda of one sewing motor machine, 10 bags of dry maize, one Samsung mobile phone, assorted clothes, assorted shoes, and one motor roller machine, all valued at Ksh.102,000/= and immediately before or immediately after the time of such robbery used actual violence to the said James Wamugunda. 2. The appellant faced an alternative count of handling stolen property contrary to Section 322 of the Pena Code. It was alleged that on the 16th day of March 2017 at Mchanganyiko area in Nakuru North within Nakuru County, otherwise that in the course of stealing, he dishonestly retained one mobile phone make Samsung valued at Ksh.15,000/=, the property of James Wamugunda knowing or having reason to believe it to be stolen or unlawfully obtained property. 3. In count two, the appellant and Joram Njroroge Wainaina alias Bicos alias Timo were charged with the offence of gang rape contrary to Section 7 of the Sexual Offences Act. It was alleged that on the 14th day of March 2017, at Bahati Page 3 of 24

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area in Nakuru North Sub County within Nakuru County, jointly with others not before Court, intentionally and unlawfully inserted their Page 4 of 24

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male genital organs namely penis into the genital organ namely vagina of EW without her consent which caused penetration. They faced an alternative count of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act. It was alleged that they touched the genitals of EW. 4. In count three, the appellant and Joram Njoroge Wainaina were charged with the offence of being in possession of a firearm without having a valid firearm certificate contrary to Section 4 (2) (a) of the Firearm Certificate Act. It was alleged that on the 16th day of March 2017, at Matukano area in Nakuru North Sub County within Nakuru County, jointly with others not before Court and without reasonable excuse, they carried a firearm namely, Blow P99A Pistol Serial Number 8- 004338 and Herstal Machine Gun of serial number FN 008078 without holding a firearms certificate in circumstances which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order. 5. The appellant and Joram Njoroge Wainaina faced a fourth count of being in possession of ammunition without holding Page 5 of 24

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a firearm certificate contrary to Section 4 (2) (a) of the Firearm Certificate Act. The allegation was that on the above date and Page 6 of 24

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place, jointly with others not before Court, without reasonable excuse had in their possession 42 belted ammunition of 7.62 mm without holding a certificate in circumstance which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to the public. 6. In count 4, Josephine Njoroge Wainaina was charged with the offence of consorting with a person in possession of Firearm contrary to Section 89 (2) of the Penal Code. The particulars were that on the above date and place, she consorted with the appellant who without reasonable excuse had possession of the above firearms. 7. After a full trial, the learned trial magistrate in a judgment dated 23rd December 2022 convicted the appellant and Joram Njoroge Wainaina for the offence of robbery with violence and sentenced them to death. Joram Njoroge Wainaina was also sentenced to serve 20 years imprisonment for the offence of rape. The appellant was sentenced to serve 7 years for being in possession of a firearm and 7 years for being in possession of ammunition. The sentences were suspended due to the death penalty. Page 7 of 24

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Josephine Njoroge Wainaina was acquitted of Page 8 of 24

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the offence of consorting with a person in possession of firearms. 8. Aggrieved by the conviction and sentences, the appellant and Joram Njoroge Wainaina appealed to the High Court in Criminal Appeal No. E010 of 2023 and Criminal Case No. E009 of 2023 respectively. These two appeals were consolidated and heard together. Before the High Court, both appellants challenged the reliability of the identification evidence against them, the harshness and legality of the sentences, the manner in which the confessions were obtained and the handling of their defences including their alibi. 9. In the impugned judgment dated 13th February 2025, Ong’undi, J. scrutinized the identification parades and the circumstances under which the appellants were identified. Regarding Joram Njoroge Wainaina, the learned judge found that he was exposed to the witnesses before the identification parade and no prior description had been given to the police. The learned judge concluded that this undermined the reliability of the identification. Accordingly, the learned judge quashed the conviction and sentences Page 9 of 24

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imposed on him and set him free. Page 10 of 24

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10. Regarding the appellant, the learned judge noted that he was arrested after communicating with PW2, who had given her phone number by one of the robbers. Upon arrest, the appellant led the police to the recovery of firearms and ammunition. The learned judge found this evidence, along with the confession placed the appellant at the scene. Further, the appellant’s confession was admissible and that it was corroborated by other evidence. Accordingly, the learned judge upheld both the conviction and the death sentence imposed on the appellant and suspended the 7year prison terms meted for being in possession of firearms and ammunition respectively. 11. Aggrieved by the above verdict, the appellant is now before this Court determined to overturn the said decision faulting the learned judge for: (a) upholding the conviction on the basis of unsafe, unreliable and contradictory identification evidence which was incapable of sustaining a conviction beyond reasonable doubt; (b) relying on an identification parade that was conducted in violation of the mandatory procedural safeguards set out under the Police Force Standing Orders, thereby rendering the same irregular, Page 11 of 24

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unreliable and of no Page 12 of 24

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probative value, and (c) upholding the conviction based on an alleged confession obtained in contravention of Section 25 A of the Evidence Act and in violation of his constitutional rights, thereby rendering the said confession inadmissible. The appellant prays that the conviction and sentences imposed by the trial court and affirmed by the High Court be quashed and this Court makes any other orders it may deem fit. 12. During the virtual hearing of this appeal on 29 th April 2026, the appellant was present at Naivasha Maximum Prison. However, his advocate Mr. Matoke was absent, but he had filed written submissions dated 22nd April 2026. The appellant agreed that the Court can proceed to render judgment since his advocate had filed submissions. Learned counsel Mr. Omutelema appearing for the respondent adopted his written submissions dated 10th March 2026. 13. In support of the appeal, Mr. Matoke maintained that the identification was made under difficult conditions, namely, it was at night, it was amid confusion, distress and intermittent lighting, therefore, it was unreliable. He argued that there were critical gaps in witness statements, Page 13 of 24

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including lack of early descriptions to the police, which is a key safeguard against Page 14 of 24

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mistaken identification. He contended that the trial court and the first appellate court failed to rigorously scrutinize the identification evidence as required by law. In support of this assertion, he cited R vs. Turnbull [1976] 3 All ER 54 and Francis Kariuki Njiru & 7 Others vs. Republic [2001] eKLR. 14. Citing Gideon Mwiga Ndungu vs. Republic [2021] eKLR, Mr. Matoke argued that the identification parade was fundamentally flawed and it did not comply with the Police Force Standing Orders. He insisted that procedural irregularities included lack of similarity among the parade members and prior exposure of witnesses to the appellant, which compromised the process. He argued that the appellant raised complaints about the irregularity and the officer conducting the parade admitted to the procedural lapses. It was his submission that the parade was rendered unreliable and of no probative value, therefore the Court erred in treating it as corroborative evidence. 15. Regarding the confession evidence, counsel submitted that it was obtained in violation of Section 25 A of the Evidence Page 15 of 24

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Act and the Evidence (Out of Court Confessions) Rules, 2009. Page 16 of 24

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Citing Kanini Muli vs. Republic, [2014] eKLR, counsel argued that the law on confessions is premised voluntariness, procedural compliance and protection of an accused person’s rights. He argued that he was assaulted and coerced while in police custody and he was not afforded legal representation at the time of the confession. Counsel maintained that the confession was not voluntary and that the prosecution failed to prove its admissibility. He also argued that the trial court and the first appellate court did not properly evaluate the voluntariness and procedural compliance of the confession. 16. Mr. Matoke asserted that the conviction was unsafe, unsupported by credible evidence and inconsistent with the constitutional standard of proof beyond reasonable doubt. He highlighted lack of forensic evidence, contradictions in witness testimony and the failure to identify or charge all the alleged attackers. He urged this Court to allow the appeal, quash the conviction and set aside the sentences. 17. Learned counsel for the respondent Mr. Omutelema adopted his written submissions. He maintained that the prosecution case was premised Page 17 of 24 on both direct and

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circumstantial evidence which being found in possession of Page 18 of 24 included the appellant

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recently stolen property belonging to the victims and firearms and ammunition. The appellant failed to explain the possession of this property and other incriminating items, thus the doctrine of recent possession and Section 111 of the Evidence Act came into play. Mr. Omutelema submitted that the prosecution proved all the elements of the offence of robbery with violence, namely, the offenders were armed with dangerous weapons, they were in company of others, use of violence and theft. According to the respondent, these factors were incompatible with the appellant’s innocence. Conversely, they pointed to his guilt. He cited this Court’s decision in Hussein Salim vs. Republic [1980] KECA 9 (KLR) which defined submitted that what constitutes possession. the two below courts He also rejected the appellant’s defence and provided reasons for the rejection. 18. Mr. Omutelema cited Rex vs. Kipkering Arap Koskei & Another [1949] 16 EACA 135 to urge that where a case stands on circumstantial evidence to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation Page 19 of 24

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upon any other reasonable hypothesis than that of his guilt. Page 20 of 24

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Further, it is the appellant who led the police to the recovery of the firearms and ammunition from where they were hidden. 19. Regarding the alleged confession, Mr. Omutelema cited the Supreme Court decision in vs. Republic Mohamed & Another (Petition 39 of 2018) [2019] KESC 48 (KLR) to argue that where a suspect gives an admission of material facts and the police do not invoke the provisions of Section 25 A of the Evidence Act, such an admission is admissible in evidence, though it cannot on its own form the basis of a conviction, but it requires collaboration to support a collaborative conviction. evidence Therefore, means the that presence the of appellant’s admission was properly admitted in evidence. 20. Regarding sentence, Mr. Omutelema submitted that the death penalty is the sentence prescribed under the law, therefore, it is lawful. He cited the Supreme Court decision in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024), Page 21 of 24

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where the Supreme Court held that mandatory minimum sentences are not unconstitutional. Further, the appellant was sentenced to serve 7 years imprisonment for being in possession of a firearm Page 22 of 24

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and 7 years for being in possession of ammunition which sentences were suspended because of the death penalty. He urged this Court to dismiss the appeal on both conviction and sentence. 21. This is a second appeal; therefore, our jurisdiction is limited to consideration of matters of law as stipulated by Section 361 of the Criminal Procedure Code. A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived by the two courts below unless such findings are based on no evidence. (See this Court’s decisions in David Njoroge Macharia vs. Republic [2011] eKLR), Chemogong vs. R. [1984] KLR 611 and Ogeto vs. R [2004] KLR 14). 22. The germane issue in this appeal is whether the appellant’s conviction was safe. The threshold for determining whether a criminal conviction is "safe" dictates that the prosecution must prove every essential element of the offense beyond a reasonable doubt. Establishing whether a conviction is safe entails determining whether the ingredients of the offence were proved to the required standard and whether it was Page 23 of 24

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established by evidence beyond reasonable doubt that the accused committed the offence. 23. This Court in Johana Ndungu vs. Republic [1996] eKLR determined the three sets of circumstances, which any one of them if proved, will constitute the offence of robbery with violence under Section 296 (2) of the Penal Code as follows: “(i) if the offender is armed with any dangerous or offensive weapon or instrument; or (ii) if he is in company of one or more other person or persons; or (iii) if at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” (See also Oluoch vs. Republic [1985] KLR). Similarly, this Court in Dima Denge & Others vs. Republic [2013] eKLR 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 sustain an offence of robbery with violence.” 24. The appellant’s contestation as we understand it is that, he was not positively identified. On record is the evidence of PW2 who was present during the robbery and directly Page 24 of 24

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interacted with the robbers. She testified that she was able to see and Page 25 of 24

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identify the appellant during the incident, as there was sufficient lighting from the kitchen and security lights. She said the appellant was not wearing a mask and stated that he was the one who asked her phone number before the robbers left. After the robbery, PW2 received a call from one of the robbers (later identified as Kevin Matundura, the appellant), who apologized and informed her of the location of the stolen vehicle. She agreed to meet him, which led to his arrest. PW2 identified the appellant at an identification parade and in Court as one of the robbers. Notably, PW2 saw the appellant during the robbery. He asked for number and he called her after the robbery and asked to meet her. Lastly, she identified him at the identification parade. 25. PW4, the complainant’s wife was also present during the robbery. She described one of the robbers as short, dark and thin, armed with an AK47, who helped her during the ordeal. She identified in court as this individual. 26. PW1 testified that he saw the robbers during the incident and identified the appellant as the one who guarded them with a gun. He also identified him during the identification parade. Page 26 of 24

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27. The other critical evidence is recovery of stolen property. The appellant was found in possession of the complainant’s Samsung mobile phone two days after the robbery. The doctrine of recent possession was applied, connecting him to the crime, as the phone was positively identified by the complainant (PW3) who availed a purchase receipt. 28. PW9 recorded the appellant’s confession in the presence of his mother. In the confession, the appellant detailed his involvement in the robbery, including assembling the firearms, participating in the attack and receiving stolen property. The confession led to recovery of the firearms and ammunition used in the robbery. The trial court found the admission admissible as it was made voluntarily and in accordance the legal requirements. 29. There is also the evidence of PW7 (Cpl Peter Kalongo) who testified that after the appellant’s arrest, which was facilitated by PW2’s communication with the appellant, the appellant led the police to the location where the firearms and ammunition were buried. These items matched those used in the robbery. Page 27 of 24

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30. In addition, during the identification parade conducted by CI Aynet Wekebura Dale (PW12), PW2 positively identified the appellant as one of the robbers. In a nutshell, the evidence of identification was corroborated by multiple witnesses, namely, PW1, PW2, PW3, PW4, PW7 as well as the recovery of the stolen items and the firearm and ammunition. The fundamental purpose of corroboration is to provide testimony, independent thereby confirmation reducing the risk of a witness's of a wrongful conviction. While Section 143 of the Evidence Act allows a court to convict on the evidence of a single competent witness, human error, bias or malice can jeopardize the truth. Therefore, corroboration serves as a vital judicial safeguard to ensure that justice is accurately meted out. 31. The overarching purpose of corroboration is to safeguard against the danger of a mistaken or false conviction. It acts as an objective anchor. Even if a witness appears highly credible and honest in the witness box, credibility does not automatically equal to reliability. Corroboration provides independent, external facts that verify the core components of the witness's story, ensuring that the court's Page 28 of 24

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ultimate decision Page 29 of 24

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rests on solid, objective ground. Courts apply strict cautionary rules to certain categories of witnesses whose testimony is inherently risky or suspect. In these scenarios, the purpose of corroboration is to satisfy the Court that the danger of relying on that witness has been safely neutralized. Much as the appellant poked holes in the police identification parade, it is not the sole evidence that incriminated him, and, if at all, the identification parade had shortcomings, any dangers were sufficiently neutralized by the overwhelming corroborating evidence including the unchallenged evidence of PW2 who saw him at the scene and even gave him her telephone number, the evidence of recent possession of recently stolen goods and the undisputed that he led the police to the site where the firearm and ammunition were buried. 32. The doctrine of recent possession mirrors Section 119 of the Evidence Act which allows a court to presume that a person in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless they can account for their possession. Like other common law jurisdictions, our courts view this not as Page 30 of 24

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a shifting of the legal burden of proof, but as a permissive Page 31 of 24

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inference of fact. This Court has established clear, rigid threshold through key judgments determining how and when this doctrine can lead to a safe conviction. 33. The locus classicus regarding the criteria for applying this doctrine is Isaac Ng'ang'a Kahiga & Another vs. Republic [2006] KECA 137 (KLR). In this case, this Court laid down four mandatory elements that the prosecution must prove before a court can safely rely on the doctrine of recent possession to convict. (a) Positive Proof of Possession: The stolen property must be found within the direct control or custody of the suspect. (b) Positive Identification of Property: The property must be positively identified as belonging to the complainant. (c) Proof of Theft: The property must have been unlawfully stolen from the complainant. (d) Recency: The property must have been stolen recently relative to when it was found with the suspect. All these elements were sufficiently proved in this case. 34. In Paul Mwita Robi vs. Republic [2010] KECA 381 (KLR) this Court clarified that while the facts of how the accused came into possession of the item are uniquely Page 32 of 24

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within their personal knowledge (triggering an evidential burden), the Page 33 of 24

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fundamental onus of proving guilt beyond reasonable doubt never shifts away from the prosecution. The High Court in Malingi vs. Republic (1988) KLR 225 held that the explanation given by the accused to account for their possession need only be plausible or reasonably possibly true. If the accused provides an explanation that could logically be true, even if the Court is skeptical, the prosecution has failed to discharge its burden and the accused must be acquitted. We have carefully gone through the evidence, the appellant did not give an explanation that can be considered as logically true as to how he came into possession of the stolen items. Therefore, the doctrine of recent possession was properly applied. 35. The other key issue is whether the appellant was properly convicted for the offences of being in possession of the firearm and ammunition. He denied being found in possession of the said items. He argued that no fingerprints were taken and that no inventory was prepared. He also claimed that the prosecution did not prove that he had power or control of the weapons. He also claimed that the Page 34 of 24

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weapons were recovered from person’s compound. As earlier Page 35 of 24 the second accused

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stated, it is the appellant who led the police to the place where the weapons were buried. During the robbery, he was identified as the robber who was armed with a gun. PW2 testified that the appellant asked for her number and after the robbery, the appellant called her. It is this call that led to his arrest and recovery of the weapons. Then, there is his own confession in the presence of his own mother. This evidence was corroborated by several other witnesses highlighted earlier. 36. While a confession or admission must be strictly voluntary to be legally admissible, a court will generally refuse to base a conviction on it unless it is corroborated in material particulars by independent evidence. To determine whether an admission can safely anchor a conviction, the trial court must subject it to a test of external consistency. The Court must look at the independent evidence on record to see whether the facts admitted by the suspect align perfectly with objective realities (such as medical reports, crime scene dynamics or recovered weapons). As mentioned earlier, in this case there is compelling corroborating evidence placing the appellant at the Page 36 of 24

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scene of the robbery and recovery of recent stolen items and the weapons used during the robbery. 37. This Court in Stephen Kibiwott Choge vs. Republic [2014] eKLR restated that where an admission is the primary evidence connecting the accused to a crime, the trial court must actively seek out an independent "nexus." If an accused admits to being at a scene, that admission becomes safely usable if independent witness testimony or forensic evidence places them there as well. 38. As the respondent’s counsel correctly stated, this case stood on both direct and circumstantial evidence. When a criminal case rests on both direct evidence (such as eyewitness testimony, confessions or direct video footage) and circumstantial evidence (such as forensic links, cell phone tracking or possession of stolen goods), it creates the most legally resilient foundation for a safe conviction. Cases built on this dual foundation are highly valued and heavily deferred to by appellate courts. The importance of combining these two types of evidence is because it eliminates the inherent weaknesses of each type. Every form of legal evidence has Page 37 of 24 a distinct vulnerability.

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Combining them allows one type to Page 38 of 24

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neutralize the weakness of the other. For example, direct evidence relies heavily on human factors. Eye-witnesses can be honest but mistaken, suffer from memory decay or be accused of bias and fabrication (See S vs. Mthethwa 1972 (3) SA 766). On the other hand, circumstantial evidence requires the Court to draw inferences. (See R vs. Blom 1939 AD 188). 39. As established by this Court in Athuman Salim Athuman vs. Republic [2016] KECA 697 (KLR), circumstantial evidence provides the required independent corroboration. For instance, if a single witness identifies a suspect under poor lighting conditions (weak direct evidence), but the police find the victim’s blood on the suspect's clothes or track their phone to the scene via GPS (strong circumstantial evidence), the circumstantial facts instantly cure the defects of the direct identification. 40. This Court has repeatedly warned against evaluating items of evidence in isolation. Courts emphasize looking at the cumulative effect of the evidence. When direct and circumstantial evidence match, they form what courts call a "mosaic as a whole" or a "strand of cords". Even if a Page 39 of 24

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defense lawyer manages to cast a small amount of doubt on the eye- Page 40 of 24

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witness's memory (one strand), the conviction remains entirely safe because the circumstantial forensic links (the other strands) keep the state's case tightly bound together. 41. If an accused person presents a fabricated alibi (claiming they were nowhere near the crime scene), a case that relies on both direct and circumstantial evidence makes the alibi legally untenable. The direct evidence puts a face to the crime, while the circumstantial evidence (like ballistics or fingerprint matches) proves the physical impossibility of the alibi, satisfying the strict requirements of logic that the state has excluded every other reasonable inference (See R vs. Blom 1939 AD 188). 42. We have said more than enough to demonstrate that the combination of both direct evidence and circumstantial evidence creates a case that is difficult to displace. This being the position, the appellant’s attempt to dislodge his conviction has failed on all the grounds cited. His conviction was founded on strong and compelling evidence. It is a safe conviction. We find no reason to interfere with the findings of two courts below on conviction. Page 41 of 24

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43. Regarding sentence, it is our finding that the death penalty is provided by the law for the offence of robbery with violence. (See the Supreme Court decision in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024). We also find no reason to interfere with the sentences imposed for the offences of being in possession of a firearm and ammunition which were suspended owing to the death penalty. Accordingly, we uphold the sentences imposed by the trial court and upheld by the first appellate court. Consequently, we find no merit in this appeal. It is dismissed in its entirety. Dated and delivered at Nakuru this 25th day of September, 2026. J. MATIVO ............................ .... JUDGE OF APPEAL MURUNGI B. KAIRARIA ............................ .... JUDGE OF APPEAL AHMED ISSACK ............................ .... JUDGE OF APPEAL Page 42 of 24

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I confirm that this is a true copy of the original Signed. DEPUTY REGISTRAR. Page 43 of 24

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