Silas Mwenda v Republic

She knew him before for a cumulative period of one year as someone who lived in that same plot, the scene of the robbery and in another plot as she and PW2. 5. PW1 testied that the appellant was carrying a panga, and was followed closely behind by two men. He hit the bulb and broke it. He then switched on a torch and beat them up as he demanded their phones, which he took. He also took Kshs.250/- from PW2. His accomplices were ordered to take electrical gadgets. They took a TV set make Sony that was still in a box, a TV set, make LG, a Woofer make GLD, and a DVD make ACMA. Outside their house in the same plot, PW1 heard other robbers breaking window panes of the houses and scaring people away. 6. PW2, Evelyn Kananu Kithinji corroborated the evidence of her sister, PW1 except to say that the robbers took Kshs.5000/- from her jacket, and not 250/- as PW1 stated. She said that she sought treatment for her injured arm at Meru General Hospital and was issued with a P3 form. 7. PW3, Erick Gitonga was a neighbour living in the house across that of PW1 and PW2. He corroborated their evidence and added that he was living with his girlfriend, PW4 Purity Muthoni at the time of the robbery. Their door was kicked open and the appellant walked inside with a panga in his hand. He tried to cut PW3 but he blocked the panga, sustaining a cut on his arm. PW3 testied that he recognized the appellant when he came very close to him as he cut him. He said the appellant once lived in the same plot and that he knew him well. He said that he also recognized his voice as he ordered his accomplishes to remove things from his house. He lost a Sony Wega TV worth Ksh.8,000/-, an LG DVD worth Kshs.3,000/-, and a phone make Nokia 2300 which he had bought at between Kshs.4,000/- and cash, Kshs.6,000/-. 8. PW4 corroborated the evidence of PW3 on the attack. She added that as the appellant’s accomplices beat up PW3, she managed to leave the house, as the appellant was threatening to rape her. She was chased but managed to escape to a security company where her uncle worked. She added that at the time of the robbery she sustained injuries and was treated at Meru General Hospital. 9. The case was investigated by PW5, Sgt. Zakayo Kiptisa of Meru Police Station where the matter was reported 8th July, 2012. He took statements and recorded all the items that had been stolen. He testied that the appellant was later arrested at Gakoromone market by AP. Ocers, Sgt. Githinji and Mohammed and brought to the police station. Lastly, he testied that he visited the scene and noted that the window panes of the houses of the plot, the scene of robbery, were broken. 10. Last witness was one PW6, Joshua Murungi Kooroa a Medical Ocer at Meru Teaching and Referral hospital. He produced a P3 form lled by his colleague Dr. Njuguna after he examined PW2. It was noted that PW2 had bruises on the upper chest, base of the arms as well as the left forearm. Dr. Njuguna gave probable weapon used was a blunt object, and the degree of injury was harm. 11. The appellant gave a sworn statement and denied committing the oence as charged, and gave an alibi defence. He recalled that on 9th July, 2012 he was at his work place at Gakoromone where he runs a small business selling used clothes when the police arrested him. He claimed that the case was a fabrication because of disagreements he had with the complainants’ landlord and that they wanted him out of the plot so that they could take his house. 12. In the judgment dated 1st March, 2018, the trial magistrate found that the appellant was positively identied by the witnesses; PW1, PW2, PW3 and PW4. He was satised that the prosecution proved that the appellant robbed the complainants of their properties, mostly electronics like TVs, hoofers and DVDs, while armed with a panga. He found that the prosecution had proved its case beyond reasonable doubt and convicted the appellant of the oence charged. After considering the mitigation by the appellant, the trial magistrate sentenced the appellant to death. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1958/eng@2026-09-25 2

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13. Aggrieved and dissatised with the said judgment the appellant preferred an appeal to the High Court to wit, Criminal Appeal No. 36 of 2017. In the judgment of the High Court dated 25th October 2018, Majanja, J. was satised that the trial Magistrate carefully considered the evidence and the law and came to the correct conclusion that the prosecution proved their case to the required standard. He conrmed the conviction. On the sentence the Judge relied on the Supreme Court decision of Francis Muruatetu and Another vs. Republic and Others in Petition No. 15 and 16 of 2015 and this Court’s decision of William Okungu Kittiny vs Republic, Criminal Case No 56 of 2013 [2018] eKLR and set aside the death penalty and in its stead imposed an imprisonment term of 25 years. 14. Aggrieved and dissatised with the said judgment the appellant preferred a second appeal to this Court and faults the Judge of erring on facts and the law, on the following grounds: “ 1. Of failing to note that the light at the scene was not favorable for positive identication; 2. By failing to note that the prosecution did not prove their case to the required standards of proof; 3. Of failing to note that no exhibit was produced before court to prove the allegation; 4. By failing to note that the vital witnesses were not called to prove the allegations; 5. By failing to note that the prosecution witnesses’ evidence was contradicting, inconsistent and contradictory; 6. By failing to analyze the evidence adduced before court and come with his own conclusion; 7. By failing to note that the appellant defence was not considered.” 15. The appeal was heard through this Court’s virtual platform on the 30th April, 2025. The appellant was represented by learned counsel Mrs. Mutegi, while the learned Prosecution Counsel, Mr. George Muriithi represented the State. The appellant was present virtually from Embu Prison. Both counsel relied entirely on their led submissions dated 21st February, 2025 and 24th February, 2025 respectively, without the need to highlight them. 16. We have considered this appeal, the rival arguments in submissions by both parties, the cases cited and the law. Having done so, we nd that what arises for our determination is: 17. i. Whether the identication of the appellant was safe to found a conviction; ii. Whether the rst appellate Judge failed to carry out his mandate to properly analyze the evidence expected of a rst appellate court; iii. whether the prosecution failed to call vital witnesses; and, iv. whether the appellant’s defence was considered. Being a second appeal our mandate is limited by to consider issues of law only but not matters of fact that have been tried by the rst court and re-evaluated by the rst appellate court. In Njoroge https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1958/eng@2026-09-25 3

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vs. Republic [1982] KLR 388 it was held by this Court, discussing the Court’s mandate on a second appeal: “ On a second appeal, we are only concerned with points of law and consider ourselves bound by the concurrent ndings of fact arrived at in the courts below, unless shown to be based on no evidence.” 18. The appellant has challenged the rst appellate Judge for failing to properly analyze the evidence. There are several decisions of this Court which have held that the question whether a rst appellate court failed to analyze and evaluate the evidence is a question of law which a second appellate court can consider. This Court in Jonas Akuno O’kubasu vs. Republic [2000] eKLR held that: “ …On second appeal, it becomes a question of law as to whether the rst appellate court on approaching its task, applied or failed to apply such principles.” 19. We are also guided by the decision in Adan Muraguri Mungara vs. Republic CA Cr App No 347 of 2007 where it was held thus: “ As this court has stated many times before, it has a duty to pay homage to concurrent ndings of fact made by two courts below, unless such ndings are based on no evidence at all, or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such ndings. That would mean that the decision is bad in law, thus entitling this court to interfere." 20. It is therefore clear that on a second appeal, this Court is mandated to make a nding as to whether the rst appellate court carried out its legal mandate of re-evaluating the evidence presented before the trial court in arriving at its decision. 21. The four issues raised for our determination, whether the evidence of identication was safe to found a conviction, whether the prosecution failed to call vital witnesses, whether the appellant’s defence was considered and whether the Judge carried out his legal mandate as a rst appellate court as mandated, are interrelated and therefore, we shall consider them simultaneously. 22. In the led submissions for the appellant, Mrs. Mutegi urged that there was no proper identication of the appellant because of lack of an ID parade being conducted for his identication before he was charged in court. Counsel urged that the evidence adduced by the witnesses was dock identication. Counsel invoked the case of Waithaka Chege vs. Republic [1979] KLR 271 for the proposition that where the evidence against an accused is that of visual identication, the Court must exercise great care especially where the conditions of identication was poor. She urged that the courts below did not consider the intensity of the light and the length of time PW1 to PW4 had the appellant under their gaze. Counsel also invoked the case of Abdalla Bin Wendo & Another vs. Republic REX 20 EACA 166, for the proposition that the evidence of identication should be watertight. Finally she relied on the case of Anjononi & Others vs.Republic [1980] KECA 23 (KLR) (8 January 1980) (Judgment) for the proposition that the evidence of identication through recognition as opposed to visual identication was more assuring. 23. Mrs. Mutegi submitted that the appellant’s alibi defence was clear that he was nowhere near the scene of the crime. She urged us to allow the appeal. 24. Learned Prosecution Counsel Mr. Muriithi opposed the appeal and urged that the basis of the identication of the appellant by the eye witnesses was previous encounters they had with the appellant https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1958/eng@2026-09-25 4

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for a long period of time prior to the robbery, so that the identication was of facial recognition not visual identication. 25. On the sentence, counsel urged us not to interfere with it as the Judge had invoked the Supreme Court case of Francis Muruatetu & Another vs. Republic & Others, (supra) and this Court’s decision of William Okungu Kittiny vs. Republic, (supra) to reduce the sentence from that of death to imprisonment for a period of 25 years. The appellant did not appeal against the sentence, so we leave it at that. 26. We have taken time to read the judgment of the Judge. The Judge analyzed the evidence adduced in the trial court and drew his own conclusions of the case. Regarding the nature of the oence committed and whether the ingredients for the oence charged were met, the Judge had the following to say… “the oence of robbery with violence was committed from the accounts given by PW1 and PW2 who were attacked by more than one assailant, armed with pangas. PW2 was injured and her household items stolen.” 27. Regarding identication, the Judge found that the case was not one of identication of a stranger but of recognition as the key witnesses; PW1, PW2. PW3 and PW4 knew the appellant as a former tenant at the plot. PW1 and PW2 knew him as the person who had indeed lived in the same plot before leaving the premises. 28. The evidence on identication was that of recognition. The lighting at the scene was spelt out clearly by the trial court from the mouths of the eye witnesses. PW1 stated that the appellant kicked open the door to her room shared with PW2, while the lights were on. Before the appellant hit the bulb, putting out the light, PW1 said she saw him clearly. She said that even after putting out the light, he switched on a torch which he used to see with. PW2 corroborated the evidence of PW1. PW3 also testied that the appellant burst into his house shared with PW4. The lights were o. PW3 said he recognized the appellant’s voice as he commanded his accomplices to ferry things outside the houses. PW4 corroborated his evidence. 29. From this evidence, as the trial court observed and the rst appellate court conrmed, the four eye witnesses knew the appellant before for a year or so; they saw the appellant at close proximity as he attacked them and demanded valuables; he also spoke throughout the incident and they were able to recognize his voice as they were familiar with it. Just as the Court in the case of Anjononi & Others vs. Republic (supra) cited by Mrs. Mutegi observed, identication by recognition is more assuring, more satisfactory and more reliable than identication of a stranger. We nd this case applies to the circumstances of the identication of the appellant by the four eye witnesses. The identication of the appellant was by recognition, both of voice and of facial features made at close proximity. We are satised that the quality and conditions of lighting that enabled the appellant to be seen and recognized, as well as the opportunity the eye witnesses had to hear and recognize the appellant were good and safe for positive identication of the appellant. 30. The Judge considered other issues raised by the appellant concerning the inconsistencies in the prosecution evidence, particularly the testimony of PW1 and PW2 regarding the money that the appellant was said to have taken. The Judge found that the contradiction was not material and did not go to the heart of the case, which was whether the appellant was one of the assailants. On the appellant’s suggestion that the landlord should have given evidence to support the grudge, and that for failing to call him, the prosecution had failed to call a vital witness, the Judge found that in light of the totality of the evidence putting the appellant at the scene as one of the assailants, the landlord’s testimony would neither have added nor subtracted from the prosecution case. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1958/eng@2026-09-25 5

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31. As for the failure to recover or produce exhibits in the case, the Judge found that failure to recover exhibits was not fatal to the prosecution case. The Judge also considered the appellant’s complaint that his defence was not considered and found that his defence dwelt his arrest and was satised that it was considered. In the nal analysis, the Judge armed the conviction. 32. We have considered the appeal and have come to the inescapable conclusion that the learned Judge fullled his mandate as a rst appellate court by analyzing, examining and evaluating afresh the entire evidence adduced before the trial court. We are satised that he came to the correct conclusions both in law and fact 33. The result of this appeal is that the same has no merit and is dismissed accordingly. DATED AND DELIVERED IN NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI ……………………………… JUDGE OF APPEAL J. LESIIT ……………………………… JUDGE OF APPEAL ALI – ARONI ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1958/eng@2026-09-25 6

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