Paul Githinji Maina & Another vs Republic

“From the outset we must reiterate that this being a second appeal, the jurisdiction of this Court is limited to consideration of issues of law only. Section 361 of the Criminal Procedure Code stipulates that a second appeal to this Court is only on points of law. The essence of that provision is that in a second appeal, the issues of fact will have been settled by the trial and the first appellate courts and that this Court will, except in exceptional circumstances, concern itself only with the application of the law to the facts as settled by the two courts below.” 2. The appellants, Paul Githinji Maina and Jacob Kinyua Njeru, were initially charged before the Chief Magistrate’s Court at Nyeri, with two counts of robbery with violence contrary to section 296(2) of the Penal Code. The particulars were that, on 17th August 2011, at Honi River Area, in Nyeri County within Central Province, jointly while armed with firearms, robbed Esau Nderitu of Kshs. 2,000/and at or immediately before or immediately after the time of such robbery, threatened to use actual violence on the said Esau Nderitu. 3. The particulars of the second count are that on the date and place similar to those in the first count, the two accused jointly, while armed with firearms, robbed Jackline Gacheri Gaderi of Kshs. 1,000/-, a mobile phone make Nokia E71 valued at Kshs. 5,500/-, a handbag containing a certificate of appointment, two Co-operative ATM cards, one Equity ATM card, a Sacco card and a passport, all valued at Kshs. 8,500, Page 2 of 17

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and at or immediately before or immediately after the time of such robbery, threatened Page 3 of 17

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to use actual violence against the said Jackline Gacheri Gaderi. 4. The appellants pleaded not guilty to both counts, and the matter proceeded to trial, with the prosecution calling 5 witnesses. At the close of the prosecution's case, the appellants were found to have a case to answer and were placed on their defence. Upon considering the evidence, the trial magistrate convicted the appellants of the offence of robbery with violence on both counts and sentenced them to suffer death. The appellants were dissatisfied with the verdict and appealed to the High Court, which dismissed the appeal; the conviction was affirmed. However, the sentence was commuted to life imprisonment. 5. Aggrieved by the High Court's decision, the appellants preferred this appeal. In a supplementary memorandum of appeal filed alongside submissions dated 23 rd July 2025, the appellants state that the learned Judge erred in finding that there was proper identification of the attackers. 6. Before addressing the ground, we will summarise the evidence presented in the trial court in order to appreciate the appeal before us. PW1, Esau Nderitu, testified that on 17th August 2011, after work, he picked up PW2, a police officer at Chaka, and while driving along the Honi river/mountains, he noticed two people, both wearing blue jeans. Shortly after the two pointed pistols at them, one of whom was targeting the Page 4 of 17

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passenger side. They Page 5 of 17

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entered the vehicle, pulled PW2's bag and a paper bag, and demanded money. He surrendered the Kshs. 2,000 he had on him, though they did not take his mobile phone. He noted that the attackers wore caps and overalls. He identified the pistol in court as one of the weapons used. He could not identify any of the attackers. Following the incident, they reported the matter at Kiganjo Police Station. 7. PW2, Jackline Gacheri, testified that on 17th August 2011, around 5:00 pm, on her way home, she met a friend, PW1, near Chaka. Upon reaching the Honi River, they were stopped by individuals wielding pistol-like objects. PW1 handed over Kshs. 2,000, and the attackers took her handbag, which contained her ID cards, two Co-operative Bank ATM cards (one belonging to her and the other to her husband), and a Sacco Link card, and Kshs. 1,100 in cash. The attackers then fled into the nearby forest. PW1 and PW2 were referred to the Nyeri Police Station, which launched an investigation. PW2 was later contacted by an officer who informed her that some suspects had been arrested near the scene of crime. On 19th August 2011, she attended an identification parade and successfully pointed out the attackers, noting she had seen them clearly when they pointed the pistol at them. 8. PW3, IP Lawrence Kiano, testified that he was requested by Corporal Benjamin Nyongesa to conduct an identification parade, which he organised on 19 th August 2011, at the Nyeri Police Station after receiving Page 6 of 17 a request from the

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complainant. He assembled a group of eight people who matched the 1st Page 7 of 17

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appellant in age and body size, and allowed him to choose his position in the line. The 2nd appellant chose to stand between the 1st and 2nd person in the parade, and he expressed satisfaction with the arrangement. PW2 was then called from the crime office and successfully identified the 1st appellant by touching his shoulder. The 1 st appellant confirmed he was satisfied with how the parade was conducted. He recorded and signed the document. He repeated the same exercise with the 2 nd appellant, who chose to stand between the 6th and 7th person. PW2, who was in the report office, was called and identified the 2 nd appellant by touching his shoulder. The 2 nd appellant was also satisfied with the process. 9. Following this, PW3 dismissed the first group and organised a second identification parade with eight different people for the 1st appellant. After explaining the procedure and confirming that the 1st appellant did not have a witness, the 1st appellant chose to stand between the sixth and seventh positions in the lineup. PW2 was called in again as the witness and identified the 1st appellant by touching his shoulder. The 1st appellant expressed satisfaction with the parade, and PW3 signed the form. 10. PW4, PC Sylvester Ngetich, recalled that on 18th August 2011, he and PC Mwalimu were deployed by the OCPD Nyeri Central to conduct a special operation patrol along the NyeriKiganjo road, specifically targeting the Gamerock area due to reported cases of highway robberies. Before going out Page 8 of 17

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on patrol that morning, they were provided with descriptions of two young Page 9 of 17

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male suspects: the first gentleman was described as wearing blue jeans trousers and a blue jeans jacket, while the second was described as wearing a blue jeans jacket and yellow striped trousers. 11. In the afternoon, the officers decided to lay an ambush in a coffee plantation. Around 3:00 pm, two men emerged from a coffee plantation on the opposite side of the road, stood briefly, and then proceeded forward. The officers decided to follow them at a distance of about 100 meters. The two men temporarily disappeared from view but re-emerged heading toward Kiganjo. Because the suspects were 100 meters away, the officers boarded a matatu travelling toward Kiganjo and alighted just after passing them. They then confronted and searched the suspects. PW4 managed to recover a toy pistol from inside the trousers of the 1st appellant. He also searched the 2nd appellant and recovered a Nokia 1680 mobile phone. The two appellants were arrested and taken to Gamerock AP Camp and later transferred to Nyeri Police Station. 12. PW5 Corporal Benjamin Nyongesa, the investigating officer, recalled being in the office on 18 th August 2011, when he was directed by DCIO Mr. Chesoni to take over the investigation of a robbery that had taken place the previous day, near the Honi River. The victims were hijacked and robbed of their valuables while travelling; the driver was PW1, and the passenger was PW2. According to their statements, two armed young men harassed them, with one Page 10 of 17

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suspect approaching PW2's side and grabbing her handbag, which contained Kshs. 1,100 and a Page 11 of 17

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Sacco ATM card, while the other suspect harassed the driver and robbed him of Kshs. 2,000 before both suspects dashed into the bushes. 13. There were two suspects who used to harass passersby in that same area. The police launched a manhunt along the road and the bushes, leading to the arrest of the appellants. A search by the arresting officer recovered a toy pistol and a phone from the 1st appellant, prompting a further search of their houses, where a G3 empty magazine was recovered from the 1st appellant's house (which was produced in a separate case), and a Nokia mobile phone was recovered from the 2nd appellant. These items were retained as exhibits, and because there was an indication that the suspects could be identified, he requested an identification parade. The parade was conducted by PW3, and after learning that PW2 had positively identified both suspects, he preferred charges against the two appellants. 14. On being placed on their defence the 2nd appellant testified as DW1 (the 1st accused). He stated that on 18 th August 2011, he finished work at 4:30 pm and was heading home when two men stopped him and took him to the police station. He denied the charges. 15. The 1st appellant (2nd accused) DW2, testified that on 18th August 2011, he boarded a matatu going to Shamrock to buy sweet potatoes and arrowroots. Upon alighting, he was stopped and searched by two men who identified themselves Page 12 of 17

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as police officers. He was taken to the Station, and the Page 13 of 17 Nyeri Police

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following day, he and eight other individuals of similar stature were placed in a cell corridor for an identification parade. Before then, he had been taken to the OCS's office where PW2 was and then returned to the corridor to pick his position. While PW1 failed to identify him, PW2 was told to pick him out of the parade. He maintained his innocence and denied the charges because he had been at work on that date. 16. In its judgment, the trial court found the two counts to have been proved beyond a reasonable doubt and convicted the appellants and sentenced each one of them to suffer death. Aggrieved by the conviction and sentence, the appellants lodged a first appeal in the High Court. In a judgment dated 11th January 2018, the High Court (Mshila J.) upheld the conviction, set aside the death sentences and substituted the same with life sentences, thus precipitating this second appeal. 17. The appeal before us was heard on the Court’s virtual platform by way of written submission. Learned counsel for the appellants, in submissions dated 23 rd July 2025, argues that the first appellate court and the trial court erred in finding the identification proper and safe to found a conviction. Counsel highlights a critical contradiction in the evidence of PW1 & PW2. While PW1 testified that the attackers wore caps and overalls and that he could not identify them at the scene because he was preoccupied with their harassment, PW2 claimed to have identified them Page 14 of 17

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under the exact prevailing circumstances. Furthermore, the prosecution failed to account for the fact that PW2 never appellants provided a physical Page 15 of 17 description of the

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upon reporting the robbery or anytime thereafter, with the only initial description being of the blue jeans worn by the attackers. 18. Counsel contends further that the subsequent identification parades were entirely compromised and a sham. Evidence from the arresting officer (PW4) revealed that the appellants were arrested on 18th August 2011, the day after the robbery, solely because they were wearing the specific clothing (blue jeans and blue jeans with yellow strips) described to him by his seniors. The identification parades were conducted the very next day, on 19th August 2011, while the appellants were presumably still wearing the same clothes; PW2 may have picked on anyone wearing that kind of attire. 19. Counsel asserts that the appellants were not caught at the scene of the alleged crime, nor were they found in possession of any stolen property to establish a nexus to the crime; specifically, the Nokia E71 phone stolen from PW2 did not match the Nokia 1680 recovered from the 2 nd appellant. Citing Maitanyi vs Republic, [1986] KECA 39 (KLR), counsel contends that the two courts below failed to thoroughly test the identification evidence or properly apply the necessary legal considerations before arriving at their respective decisions. Consequently, Identification cannot be safe to warrant a conviction. 20. Learned counsel for the respondent filed submissions dated Page 16 of 17

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25th June 2025 and opposes the appeal in its entirety. Outlining this Court's role under Article 164 of the Constitution, counsel Page 17 of 17

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urges that, as a second appeal, the Court's jurisdiction is strictly limited to matters of law pursuant to section 361(1) of the Criminal Procedure Code, meaning concurrent factual findings from the two courts below should not be disturbed unless completely unsupported by evidence. 21. Counsel counters the appellants' claim that identification was improper and argues that the victims (PW1 and PW2) positively identified the appellants because the incident occurred at around 5:00 pm, and at the time there was ample natural light. Furthermore, the assailants came close enough and threatened the two with a weapon (later found to be a toy gun), and took their time ransacking a handbag and wallet near the Honi river as they did not flee immediately. This allowed PW2 to see them well, and PW1 to notice specific clothing, such as blue jeans. The police, who were patrolling due to rising insecurity, apprehended the appellants and recovered a stolen mobile phone and a toy gun. 22. On whether the identification parade violated police standing orders, counsel asserted that the process was lawful and aligned with the National Police Service Act and Police Force Standing Orders. The parades were conducted independently for each appellant on 19th August 2011, by PW3 in a confined location using eight distinct line-up participants of similar appearance. PW2 positively identified the appellants by touching their shoulders. Further, the appellants signed the parade reports confirming they were “satisfied” with the Page 18 of 17

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process without raising any complaints during the investigation or trial. Page 19 of 17

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23. Finally, counsel rejects the assertion that the two courts below failed to evaluate the defence alongside the prosecution’s case. He submits that the trial court’s record demonstrates that the trial magistrate analysed and ultimately rejected the defence because it failed to cast doubt on the prosecution's case, while the High Court subsequently conducted a fresh evaluation and independently concurred that there were justifiable reasons to reject the appellants' defences. 24. In conclusion, counsel asserts that all key elements of the offence of robbery with violence were met, including the presence of multiple attackers and the use of a toy gun which was similar to a firearm. Counsel dismisses the appellants' grounds as being baseless and an attempt to mislead the Court. 25. Having considered the record of appeal, the rival submissions and the law, we are of the view that the appeal turns on the following issues: a. Whether the appellants were positively identified as the perpetrators of the robbery and b. Whether the defence advanced by the appellants displaced the prosecution's case. 26. On whether the appellants were positively identified as the perpetrators of the robbery, the appellants submit in the negative. The principal complaint by the appellants is that Page 20 of 17

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the circumstances obtaining at the scene did not permit positive Page 21 of 17

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identification, and the identification parade was not properly conducted. 27. The robbery occurred at about 5:00 pm in broad daylight. PW2 testified that she was able to observe the assailants clearly when they stopped the vehicle, pointed pistol-like objects at them and during the robbery. The encounter was not momentary. The robbers approached the vehicle, engaged the complainants, searched them and stole their property before escaping. 28. The learned Judge in her analysis stated as follows; “41. In this instance the robbery took place at 5.00 pm which means it was broad daylight and that there was sufficient daylight thus making the conditions and circumstances favourable for identification; the parade was conducted on the 19/08/2011 that is approximately a time lapse of two (2) days after the incident and was still fresh in PW2's memory; PW2 unhesitatingly identified the appellants at the identification parade; 42. This court finds no reason to interfere with the trial court's finding that the identification parade was properly conducted by PW3; the appellants had been positively identified by PW2; and that the identification evidence of a single witness is found safe to support the conviction.” 29. The record also shows that PW1 & PW2 furnished the police Page 22 of 17

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with a description of the assailants' clothing immediately after the robbery. PW4 testified that before commencing patrol duties, they were given descriptions of two suspects: one Page 23 of 17

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wearing blue jeans trousers and a blue jeans jacket, and the other wearing a blue jeans jacket and yellow-striped trousers. Acting on that description, the police mounted an ambush in the vicinity of the scene of the crime and intercepted the appellants wearing the exact attire earlier described. 30. The significance of a witness giving an assailant's description before arrest was considered by this Court in Francis Kariuki Njiru & 7 Others vs Republic [2001] KECA 58 (KLR), where the Court stated that one of the factors to consider is whether the eyewitness gave a description of the attacker to the police at the earliest opportunity. 31. The description supplied by the PW1 & PW2 was therefore not an afterthought. It directly led to the arrest of the appellants near the scene of the robbery, barely a day after the incident. In addition, PW2 subsequently picked out both the appellants during identification parades. Her evidence remained consistent throughout and was accepted by both the trial court and the first appellate court. 32. Having re-examined the circumstances obtaining herein, we are satisfied that the robbery occurred during daylight; the assailants were in close proximity to the complainants; PW2 had ample opportunity to observe them; and the description given immediately after the robbery led directly to their arrest. The possibility of mistaken identity was therefore eliminated. Page 24 of 17

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We consequently find no basis to disturb the concurrent findings of the two courts below that the appellants were positively identified. 33. On whether the identification parades were properly conducted and had probative value, the evidence of PW3, who conducted the identification parades, was clear and unchallenged. Separate parades were conducted for each appellant. Each appellant was informed of his rights, allowed to choose his position on the identification parade and placed among eight persons of similar appearance. The appellants admit to this in their testimony and submissions. PW2 identified each appellant by touching them on the shoulder. After the exercise was completed, both appellants expressed satisfaction with the manner in which the parade had been conducted and signed the relevant forms. 34. This Court in David Mwita Wanja & 2 Others vs Republic [2007] KECA 324 (KLR), held that where identification parades are conducted in compliance with the Police Standing Orders, and no complaint is raised by the suspect, the resulting identification evidence remains admissible and reliable. The Court held as follows: “It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give Page 25 of 17

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reliable Page 26 of 17

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evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.” 35. We are unable to discern any violation of the Police Standing Orders from the record. The appellants were given a chance to have a witness present, but both declined. The complaint that the parades were a sham was not substantiated by evidence. Indeed, both appellants confirmed their satisfaction with the process. 36. Equally, on this complaint, we find no basis upon which to depart from the concurrent findings of the two courts below. We find that the identification parades were properly conducted and served to reinforce the visual identification evidence adduced by PW2. 37. On whether the defence advanced by the appellants displaced the prosecution’s case. Both the courts below considered the defences and rejected them. The learned Judge held as follows: “52. This court is satisfied with the trial courts finding that the defences did not in any way cast any doubt on the Page 27 of 17

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evidence tendered by the prosecution and did not Page 28 of 17

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dislodge or controvert the prosecution’s case; 53. This court is satisfied that the trial court analyzed the appellants’ statements of defence and when weighed against the evidence tendered by the prosecution the trial court had good reasons for disregarding the defences as both did not cast any doubt or discredit the prosecutions’ case.” 38. The burden of disproving an alibi raised by the defence is upon the prosecution. This was restated by this Court in Kimotho Kiarie vs Republic [1984] KECA 65 (KLR), which held that an alibi should be weighed against the prosecution's evidence. However, where the prosecution's evidence places an accused person at the scene of the crime and displaces the alibi, the court is entitled to reject the defence. In Joseph Waiguru Wang’ombe vs Republic [1980] KECA 6 (KLR), this Court held that where the prosecution’s evidence is strong and credible, an alibi may be rejected. 39. In the present case, the appellants were arrested near the locus in quo a day after the robbery, wearing clothes matching the description given by the complainants. PW2 positively identified both of them at the parade. Their explanations did not cast any doubt on the prosecution's evidence. We therefore agree with the two courts below that the defences were properly considered and rightly rejected. Page 29 of 17

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40. The High Court interfered with the mandatory sentence prescribed for the offence of robbery with violence that was lawfully meted out by the trial court. However, the issue was not raised by the prosecution, and, therefore, we shall say no more. 41. Accordingly, we find no merit in the appeal. The appeal is hereby dismissed in its entirety. Dated and delivered at Nyeri this 25th day of September, 2026. W. KARANJA …………………….………….. JUDGE OF APPEAL S. ole KANTAI …………………….………….. JUDGE OF APPEAL ALIARONI …………………….………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 30 of 17

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