Benard Kipkemoi Cheruiyot alias Solo v Republic

conducting a careful re-evaluation of the evidence as required of a first Appellate court and erred in law by failing to: Page 2 of 22

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a) find that the ingredients of the offence of robbery with violence were not proved; b) find that identification was unsafe, having been done at night, without sufficient lighting; c) consider that no identification parade was conducted and his identification was unreliable hence incapable of sustaining a conviction beyond reasonable doubt; and d) find that the sentence of death imposed upon him was manifestly harsh and excessive. 3. Based on those grounds, supported by his written submissions and cited case law the Appellant prays that the present appeal be allowed, the conviction be quashed, the sentence be set aside and he be set at liberty. In the alternative the Appellant urged us to interfere with the sentence of death and substitute it with a lesser and proportionate sentence in line with the principles of fair and just sentencing. 4. The factual background and events leading to this appeal as captured in the record of appeal can be briefly stated. They begin on 16th August, 2015 at 12.30 A.M at Bomet town. Emmanuel Kiprotich Koech PW1 a medical doctor by profession and the complainant in the case was going home after attending a function at Bomet stadium with Duncan Kipyegon [PW2]. They left the function at 12.00 midnight, had Page 3 of 22

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tea at Cross Venus Hotel and parted ways at the Kenya Page 4 of 22

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Women Finance Trust. There were lights at Kenya Women Finance Trust building and on the road to the mosque. 5. As he was walking towards his home, two people who were walking ahead of him passed the lit area. He then saw two other people approach and reach the lit area while he was still in the dark area. He recognized one of the men as ‘’Solo’’ with whom he used to play pool table game, within Bomet town. They flashed him with a torch. He reached to his mobile phone and flashed at them. Matters then took a dramatic turn. The two men jumped on him and ordered him to sit down. He held them back and asked the person he knew what the problem was. Solo retrieved a panga from his jacket and hit him on the left side of the head with the blunt side of the panga. He in turn kicked Solo and managed to free himself. He ran away and reached the two people who had been walking ahead of him. He told them what had happened to him and asked them to escort him to his house, which they did. 6. On reaching home he called Duncan using his wife’s mobile phone as he had dropped and lost his Samsung Galaxy mobile phone during Page 5 of 22 the struggle with his

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assailants. He told Page 6 of 22

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Duncan what had happened to him after their parting. Duncan offered to take him to hospital that night but PW1 told him that he was not badly injured. He reported the matter at Bomet police station the following morning and told the police that he knew one of the attackers and could identify the other. He was issued with a P3 form by PW4 which was filled by PW5 at Longisa County hospital where he was treated. He then looked for Solo the attacker he knew and found him in the house where they used to play pool table game within Bomet town. He had the Appellant arrested by County enforcement officers one of whom was [PW3] and taken to Bomet Police station where he was handed over to the investigating officer PW4. 7. The Appellant was then arraigned before the Principal Magistrate’s Court at Bomet on 18/8/15 when plea taking was deferred to 14/9/15. He was charged with two counts namely: Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code in count 1 and being in possession of cannabis sativa (bhang) contrary to Section 2(1) as read with Section 3(1) of the Narcotics and Psychotropic substances Control Act No. 4 of 1994. Page 7 of 22

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8. The particulars in count 1 were that on 16 th day of August 2015 at 00.30 hrs at Bomet Town within Bomet County, the Appellant had jointly with another not before court, robbed Emmanuel Kiprotich Koech of a mobile phone make Samsung Galaxy Pocket GT55301Serial number 356938054823170 valued at Ksh 10000 the property of Emmanuel Kiprotich Koech and at or immediately after the time of such robbery wounded the said Emmanuel Kiprotich Koech. In count 2 the particulars were that the Appellant was found in possession of one gram of cannabis sativa with a street value of Ksh 20 [twenty shillings] in Bomet town on 16th August, 2015. 9. The Appellant pleaded not guilty when the charges were read out to him on 14th September, 2015 and the matter proceeded to full trial before the Hon. P. Achieng [PM]. The prosecution called five witnesses consisting of the complainant [PW1], Duncan with whom he had attended the function at Bomet Stadium on the fateful night[PW2], Bernard Bett [PW3] one of the officers from Bomet County Government Enforcement Department who arrested the Appellant, No. 62388-PC Gibson Kurgat of Bomet police station, the investigating Page 8 of 22

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officer [PW4] and Julius Magut [PW5], the clinical officer who Page 9 of 22

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treated the complainant at Longisa County hospital on 16 th August 2015 and filled the P3 form. The Appellant gave unsworn testimony and called no other witness in support of his defence. 10. At the end of the trial the magistrate considered the evidence tendered by both the prosecution and the defence. She found that there was sufficient evidence proving that the Appellant committed the offence of robbery with violence and was also found with cannabis sativa at the time of his arrest. Accordingly, she returned a verdict of guilt on both counts and convicted him in a judgement delivered on 31st May, 2016. In mitigation the Appellant left the matter to the trial court which considered that the Appellant was not a first offender as he was at the time serving a six months prison term. In regard to Count 1 the court sentenced the Appellant to death and one [1] year imprisonment in count 2. The sentence in count 2 was held in abeyance. The court reasoned that death is the only sentence provided in law for the offence of robbery with violence. 11. Aggrieved by that decision the Appellant lodged High Court Criminal Appeal No. 12 of 2016 against conviction Page 10 of 22

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and Page 11 of 22

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sentence at the High of Kenya at Bomet. That first appeal was heard by M. Muya J who upon re -evaluating the record found it lacked merit and dismissed it in his judgement dated 21st November, 2017. He upheld both conviction and sentence thus triggering this second appeal. 12. At the virtual hearing on 27th April, 2026, the Appellant was present at Naivasha Maximum prison. He was not represented by counsel at the hearing because he had discharged his advocate and elected to argue the appeal in person. He adopted the written submissions in support of his appeal and added that the judge; did not act in accordance with the law when he dismissed his first appeal and failed to consider discrepancies in the evidence of PW2, the investigating officer and the clinical officer[PW5]. He told us that whereas the evidence of PW2 and the investigating officer was that PW1 had been cut on the face, the clinical officer [PW3] testified that PW1 had a swelling on the face which was one day old, when he examined him on 16th August 2015. Arising from PW5’s evidence the Appellant told us in his assessment the injury was one day old at the time of medical examination, it Page 12 of 22

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was inflicted on the complainant at 10.00 A.M on 15TH August. Yet the incident in respect of which he Page 13 of 22

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was charged with was alleged to have occurred at around midnight and he was arrested on 16 th August. He asserted that he had been in prison for ten years in connection with an offence he was not involved in anyway and beseeched the court to assist him. 13. In his written submissions the Appellant argues that the High Court fell into serious errors of law which occasioned a miscarriage of justice when it upheld the lower court’s finding of guilt. He asserts that it was not proved that he violently stole the complainant’s mobile phone, yet it is settled law that proof of theft is a mandatory ingredient without which the offence of robbery with violence under Section 296[2] of the Penal Code cannot be sustained. 14. To demonstrate the centrality of the component of theft in a charge of robbery with violence the Appellant cited: Malingi vs Republic (1989) KLR 225; where the Court emphasized that theft must be positively proved and cannot be merely inferred from violence; Oluoch vs the occurrence of Republic (1985) KLR; where the Court held that robbery is essentially an aggravated form of theft, and failure to prove stealing is fatal to the charge; Johana Ndungu Page 14 of 22

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vs Page 15 of 22

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Republic CR. Appeal No. 116 of 1995 (1996) KECA 187(KLR); where the Court clarified the essential elements of robbery with violence and reaffirmed that theft is the foundational element upon which the offence rests. 15. The Appellant asserted that in the instant case the prosecution failed to establish the elements of stealing because in his view: a) There was no proof of ownership of the phone alleged to have been stolen; b) There was no evidence of actual taking of the phone, or that the complainant was deprived of any property; c) There was no credible evidence demonstrating that he took or carried away the phone; d) There were grave inconsistencies in the evidence tendered by the prosecution witnesses and their testimonies regarding the alleged stolen item were contradictory and unreliable. 16. The Appellant further contended that the prosecution did not prove that force or threat was applied on the complainant during the alleged robbery because the evidence on the use of force was contradictory. He asserted that PW1 and PW5 testified that the complainant suffered a swelling consequent to being hit with a blunt object yet a panga is not a blunt object; while PW2 and PW4 testified that they saw a cut on the complainant head Page 16 of 22

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and forehead respectively. Additionally Page 17 of 22

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the Appellant asserted that the two courts below; failed to detect the contradictions in the prosecution evidence; that the prosecution did not prove that the attackers were more than two or were armed with dangerous weapons , no weapon was recovered from him when he was arrested and none was produced as an exhibit at the trial. 17. Regarding identification, the Appellant contended that his conviction was founded on unsafe visual identification of a single witness [PW1], made at night during a sudden and stressful encounter. He added that the lighting relied upon was so fleeting and unstable that a possibility of mistaken identification cannot be reasonably ruled out. 18. As to the applicable legal principles on identification, the Appellant first referred us to a passage in Francis Kariuki Njiru & 7 Others vs Republic (2001) eKLR: Where the learned judges stated as follows: “The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification was positive and free from the possibility of error. The surrounding circumstances must be considered {see R vs Turnbull [1976] 63 Cr App R 132). Among the factors the court is required to consider is whether Page 18 of 22

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the eye witness gave a description of his or her attacker or attackers to the police. At the earliest opportunity or at all.’’ 19. The Appellant then cited Wamunga vs Republic (1989) KLR in support of the proposition that a trial court is enjoined to carefully examine the evidence of identification or recognition, if it is the only evidence against a defendant and to satisfy itself that the circumstances of identification were favourable and free from possibility of error before it can make it the basis of conviction. 20. He also placed reliance on Maitanyi vs Republic (1986) KLR 198, where the Court emphasized the need for testing the evidence respecting identification by a single witness with great care, especially when it is known that the conditions favouring identification were difficult. He submitted that the High Court treated the evidence of PW1 as one of recognition without subjecting it to careful scrutiny and contended that though recognition is more reliable and assuring than the identification of a stranger, it may be mistaken and there was need to test the evidence with the greatest care to ascertain that the prevailing conditions were conducive for positive recognition. In that regard he referred us to Anjononi & Page 19 of 22

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Others vs Republic [1980] KLR and Gabriel Kamau Njoroge vs Republic (1982-88) KLR 1134. 21. In his case the Appellant asserted that the alleged recognition occurred in darkness, during a brief and sudden confrontation which was not favourable for a safe and positive identification which was compounded by the failure to conduct an identification parade which he reckons would have minimized the possibility of error. In those circumstances the Appellant reckoned that his recognition by identification PW1 and was the nothing more 1ST appellate than court dock erred in upholding a conviction founded on weak, uncorroborated and untested identification evidence. 22. On sentence the Appellant told us that the sentence imposed is harsh, manifestly excessive and disproportionate in the circumstances. That the trial court failed to properly consider all the relevant mitigating circumstances before imposing the ultimate penalty. The Appellant stated that the trial court should have considered that the value of the stolen mobile phone was ksh 10,000, the phone had been reunited with the Page 20 of 22

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complainant and the injuries inflicted on the complainant were not serious. He submitted that though the offence Page 21 of 22

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carries a severe statutory penalty, the two courts below had the discretion to impose a lesser penalty reflecting the nature of the offence, the circumstances in which it was committed, and the personal circumstances. 23. The Appellant cited the following cases: William Okungu Kittiny vs Republic Criminal Appeal No. 56 of 2013(2018) KECA 851 (KLR) for the proposition that the sentence of death under section 296(2) is a discretionary maximum punishment and not a mandatory penalty, Simon Kanui Mwenda vs R (2020) eKLR for the proposition that the Court ought to consider mitigating circumstances in determining the appropriate sentence; Charo Ngumbao Gugudu vs. Republic (2011)KECA 387(KLR) for the proposition that where the appeal relates to the principles of sentencing as opposed to severity of sentence; it is within the mandate of the Court of Appeal to correct the failure by the two courts below to take into account the usual circumstances to be considered in deciding the appropriate sentence; and Daniel Kyalo Muema vs Republic Cr. Appeal No. 479 of 2007(2009) Page 22 of 22

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KECA, in support of the proposition that the words ‘’shall be liable’’ do not in their ordinary meaning require that the stated penalty be imposed but merely express the stated Page 23 of 22

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penalty which may be imposed at the discretion of the court. Based on those submissions and cited case law on sentencing the Appellant urged us to interfere with the sentence in the event that we uphold the conviction. 24. Mr. Omutelema, the Learned Deputy Assistant Director of Public Prosecutions represented the Respondent during the virtual hearing. He opposed the appeal, relied on the written submissions dated12th March, 2026 and prayed that the appeal be dismissed in its entirety. Counsel submitted that the prosecution had proved all the elements of robbery with violence as defined under section 296[2] of the penal code because there was direct evidence by PW1 that: a]the Appellant was in the company of one other person during the robbery but who was not before the court, b] the Appellant was armed with a dangerous weapon namely a panga; c] which he used to strike and wound the complainant on his head; d] the complainant’s phone was stolen during the incident and e] PW1 saw his assailants and recognized the Appellant who was well known to him when they passed near the lights at Kenya Women ‘s Finance Trust Building. Page 24 of 22

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25. The Respondent’s counsel contended that both the trial court and 1st Appellate court properly considered the evidence and rightly concluded that the Appellant was correctly identified and recognised as the perpetrator. That notwithstanding that the incident occurred at night, the prevailing light conditions at the scene were conducive for correct identification and recognition. Counsel argued that the Appellant’s defence was considered and rightly rejected because the defence statement was a bare denial that did not challenge the evidence of the prosecution witnesses. 26. On the death sentence, the Respondent contended that there were imposition aggravating of a factors severe which sentence justified which the counsel enumerated. The Appellant was in the company of another person during the commission of the robbery; there was strong evidence of deliberateness in the commission of the offence; the Appellant retrieved the panga from his jacket and hit the complainant with the blunt side on the head. The Appellant did this even after the complainant had recognized him and asked him what was the problem; the Appellant was not remorseful and had been previously Page 25 of 22

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convicted in Bomet Criminal case No. 1297 of 2014. Page 26 of 22

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27. Citing Benard K Imani Gicheru vs Republic (2002) eKLR, Counsel submitted that the trial court considered all the relevant material factors before passing sentence and urged us not to disturb it because sentencing is a matter falling within the discretion of the trial court and an appellate court can only intervene in exceptional circumstances. 28. We have carefully considered the grounds of appeal, the parties’ rival submissions, the record of appeal and the cited case law. Both parties fully appreciate our limited jurisdiction as a second appellate court to consider questions of law only. We are obligated to do so by both statutory law - Section 361 of the Criminal Procedure Code and case law. [See Stephen M’Irungu vs Republic [1982 -88) KLR and Chris Kasamba Karani vs Republic (2010) eKLR. 29. The Appellant’s challenge against the conviction and sentence upheld by the High Court is three pronged; namely that the ingredients of the offence of robbery with violence were not proved; identification was not proved and the death sentence is manifestly harsh and excessive. Page 27 of 22

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The question for our determination is whether the High Court erred in law when it affirmed the trial court’s decision convicting the Page 28 of 22

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Appellant for the offence of robbery with violence and sentencing him to death as contended by the Appellant. 30. We note that the High Court was satisfied that the ingredients of robbery with violence were proved against the Appellant principally because there was evidence that: a) the Appellant was armed with a dangerous weapon namely a panga with which he hit the complainant injuring him on the head. There was violence meted on the complainant at the time of the robbery; b) the Appellant was in the company one other person who was never apprehended; c) the complainant did not voluntarily hand over his phone to his assailants; d) The complainant saw his assailants when they stepped in the lit area at the Kenya Women Finance Building and recognized the Appellant as Solo a person with whom he had played pool within Bomet County; e) The complainant’s phone was only returned after the Appellant was arrested with a note “Toa kesi please simu umeipata.” 31. Upon our own independent review of the record we are satisfied that the ingredients of the offence of robbery with violence were proved against the Appellant beyond reasonable doubt, and that the complainant saw and recognized him during the incident. The Appellant’s protestation that theft was not proved is in our view not merited. Even if we were to accept that the Appellant or Page 29 of 22

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his accomplice did not snatch or take the phone from the Page 30 of 22

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complainant and it was dropped during the struggle, we would still hold that it was stolen from him in the circumstances of this case. In our view the Appellant and his accomplice confronted the complainant with the sole aim of stealing from him. The Appellant whipped out a panga and hit the complainant not in the course of an ordinary assault but in order to subdue him to enable them steal from him. When they took the phone after the complainant dropped it in the struggle it was not an innocent case of lost and found item. It is clear to us that the phone would never have been returned to the complainant had the Appellant not been apprehended and charged in court. The contention that it was not proved that the phone belonged to the complainant is also not valid. For if it was not his lost phone why would it be slipped under the door of his shop. 32. On the question of use of violence at or during the robbery, we are satisfied that the blow inflicted upon the complainant by the Appellant using the blunt side of a panga was not a friendly blow at all. It was an unprovoked, unwarranted and a most unkind blow inflicted by a person whom the complainant knew well as they Page 31 of 22

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had been playing pool together at a house within Bomet town. The Appellant did not Page 32 of 22

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say that the complainant was a stranger, or deny that they had played together as testified by PW1 and neither did he say that the complainant had wronged or provoked him in anyway. 33. In those circumstances, the two courts below were entitled to hold that violence was used against the complainant in the course of stealing from him. It was not in our view evidence of an ordinary assault. And it did not matter that the complainant and the clinical officer described the resultant injury as a swelling while the investigating officer described what they saw as a cut on PW1’s head. The contradiction in our view is not material and would not in law alter the effect of the direct evidence of PW1 corroborated by that of a medical officer PW5, that violence was inflicted on PW1’s head using a blunt object. 34. Instructively the complainant, told both Duncan Kipyegon PW2 and PW4 -PC Gibson Kurgat that he knew one of the attackers and could identify the second attacker if he saw him. He tracked down the Appellant to the place they used to play the pool table game and identified him to PW3 who arrested him and took the Appellant to Bomet Police station. Page 33 of 22

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In those circumstances both courts below were entitled to hold that the Appellant was positively identified and recognized by the complainant using the lights at the Kenya Women Finance Trust Building. An identification parade in a situation where a complainant is the one who tracks down and points out his assailant to the arresting officer would not in our view have served any purpose at all and the trial court was right in holding that an identification parade was quite unnecessary in the circumstances. We are not persuaded that any error of law was committed by the High Court when it upheld the trial court’s finding in that regard. We are therefore satisfied that the first Appellate Court was right to uphold the conviction. 35. As regards the sentence of death, we note that this is a matter within the discretion of the trial court and severity of sentence is regarded as a question of fact, the consideration of which, is expressly precluded on a second appeal by dint of Section 361 of the Criminal Procedure Code unless it is demonstrated that the trial court acted on the wrong principles or failed to consider relevant factors, or took into account irrelevant factors. The Page 34 of 22

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Appellant complains that the sentence passed is harsh, manifestly excessive and disproportionate in the Page 35 of 22

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circumstances. That though the offence in question carries a severe statutory penalty the court is nevertheless required to consider mitigation and exercise its discretion judiciously before arriving at an appropriate sentence. We note that the death penalty is the statutorily prescribed sentence for the offence of robbery with violence. The Appellant was not a first offender as contended in this appeal and neither did he say anything in mitigation before the trial court. On 31st May 2016 he conceded that he was then serving a sentence of six months at the Kericho G.K prison following conviction for the offence of being armed in public in Bomet Criminal Case No. 1297/2014. There is no record in the proceedings that the Appellant was remorseful or pleaded for a lesser sentence before the trial court. The High court did not enhance the sentence passed by the trial court, it only upheld what is on the face of it a lawful sentence. It did not err in upholding the sentence once it concluded that the Appellant was rightly convicted. The Appellant having said nothing in his mitigation a deterrent sentence was warranted notwithstanding the fact that the value of the phone was Ksh 10,000, the phone was restored back to Page 36 of 22

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the complainant and the injury sustained by the complainant was not very grave. Page 37 of 22

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36. In the circumstances, we are unable to accede to the Appellant’s alternative prayer to interfere with the sentence of death. In the upshot, we find no merits in this appeal and dismiss it in its entirety. Dated and delivered at Nakuru this 25 th day of September, 2026. J. MATIVO .................................. JUDGE OF APPEAL MURUNGI B. KAIRARIA .................................. JUDGE OF APPEAL AHMED ISSACK ................................. JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR Page 38 of 22

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