Godfrey Otieno alias Geofrey v Republic

armed with a dangerous weapon, namely a panga, robbed Daniel Obala Ondu of cash Kshs. 80 and Page 2 of 12

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immediately before such robbery wounded the said Daniel Obala Ondu. 2. The appellant denied the offence and the prosecution called eight witnesses in a bid to prove its case against the appellant. The prosecution’s case was that Daniel Obala Ondoo (PW1) was at home on 1st May, 2020 when the appellant forced his way into his house at about 11.00 pm. PW1 put on a torch and saw the appellant, who, when asked what he wanted in the house, cut PW1 on the side of the neck with a panga that had a black plastic handle. The appellant then ordered PW1 to shut up and cut his middle finger, upper arm and leg when PW1 did not keep silent. The appellant also demanded money, but PW1 told him he had not been paid. Before losing consciousness, PW1 saw the appellant take Kshs. 80 that was on a table and leave with the panga. PW6, who had seen the appellant in yellow trousers and a white and red shirt during the day, heard someone shouting for help on the fateful night and then saw someone running from PW1’s house. On 2nd May, 2020, PW2, PW3 and PW4 went to PW1’s home after receiving information that he had been cut with a panga. The police officers (PW7 and PW8) also went to the home after being informed by the area chief. While heading to the scene, the chief and the police officers saw the appellant running away from the villagers who wanted to arrest him. They found PW1 lying in a pool of blood with a Page 3 of 12

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deep cut on his neck and his finger had been chopped off. PW1 informed them that it was the Page 4 of 12

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appellant who had cut him and they then took him to hospital for treatment. The public apprehended the appellant and tied him with ropes before he was re-arrested by the police. They proceeded to the appellant’s house, recovered the panga he had allegedly used and took him to the police station. The clinical officer (PW5) confirmed that he examined PW1 on 4 th May 2020 at Sena Health Centre after he was brought in from Wakula Dispensary. The report was that PW1 was in pain, could not use his upper limbs, and had stitched wounds and injuries three days old. The degree of injuries were classified as harm and the nature of the weapon used was both sharp and blunt. 3. In his defence, the appellant’s sworn testimony was that he was fixed with the case and stated that PW1 could not have seen him in the dark. He asserted that the panga produced was not his and questioned why it had not been taken for tests to ascertain whether the blood stains belonged to PW1. He further questioned why the police never took photographs of the panga 4. The trial court (Hon. Japheth Bii, SRM) delivered the judgment in the case on 12th January, 2022. The court found the appellant guilty of the offence of robbery with violence, subsequently convicted him and sentenced him to life imprisonment. Page 5 of 12

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5. Aggrieved and dissatisfied with the decision, the appellant appealed his conviction and sentence in the High Court of Kenya at Homa Bay. In the judgment delivered on 19th October, 2022, Page 6 of 12

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the High Court noted that the PW’s evidence of recognition was free from error and that the prosecution proved the ingredients of the offence. The first appellate court upheld the appellant’s conviction and substituted the life sentence with a death sentence as provided for under section 296(2) of the Penal Code. 6. The appellant is still aggrieved with the decision of the first appellate court and thus preferred a second appeal to this Court. He relies on three grounds, that is: (i) failure by the prosecution to identify the appellant as required by law and to buttress the said identification by an identification parade; (ii) failure by the first appellate court to take cognisance of the appellant’s defence on the doctrine of self-defense; and, (iii) if at all the appellant committed the said offence, the first appellate court failed to consider that the said offence failed to meet the requirements of committing a criminal offence, and hence erred in law. 7. In his written submissions dated 20 th May, 2026, the appellant submitted that the prosecution failed to identify him as the perpetrator, none of the witnesses saw him and PW1 having a confrontation during the incident alleged to have occurred at 9 pm, and, PW1 did not explain how he saw the stabbing yet it was dark at night and he was only using a torch. He also noted that no identification parade was undertaken in the Page 7 of 12

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case. The appellant further argued that the trial court failed to consider his case for self-defence, that the PW1 attacked him and injured his Page 8 of 12

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leg and hand during the altercation. That he could have caused the injuries PW1 suffered while defending himself or out of provocation, and was therefore not guilty of the offence charged. He thus urged this Court to set aside the conviction and sentence and alternatively invoke Section 179(2) of the Criminal Procedure Code to reduce the charge from robbery with violence to a lesser, cognate offence. 8. The respondent’s submissions are dated 3 rd June, 2026. In respect of the ground of self-defence, it was submitted that this Court has no jurisdiction to determine an issue that was never raised before the trial court and the first appellate court. The respondent relied on the case of Republic v Julius Kitsao Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), in which the Supreme Court affirmed that a court cannot delve into questions that were neither raised nor determined by the lower court and cascaded through the proper channels. 9. On the identification of the appellant, the respondent submitted that the appellant was properly identified as required by law and there were no gaps in his identification as to the person who wounded and robbed PW1. That this was a case of recognition because the appellant and PW1 were neighbours for two years, and had worked together at a construction site. That the conditions for recognition were Page 9 of 12

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favourable, considering that PW1 used a torch light to see the appellant and had an opportunity to Page 10 of 12

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recognize him further from the conversation the two had. In addition, it was PW1 who identified the appellant to the people who arrived at the scene of crime. The respondent cited the case of Reuben Taabu Anjononi & 2 others v Republic [1980] eKLR, in which this Court pronounced that proper identification of robbers in a case of capital robbery is important, and that, in comparison, recognition of an assailant is more reliable because it depends upon the personal knowledge of the assailant in some form or other. 10. It was the respondent’s submission that the death sentence was lawfully meted out in accordance with section 296(2) of the Penal Code. That as enunciated in Supreme Court Petition E018 of 2023, Republic vs. Joshua Gichuki Mwangi [2023] KESC 99 (KLR) the court should act strictly in accordance with enacted legislation unless the law is declared unconstitutional. 11. This appeal came up for plenary hearing before us when Ms. Momanyi learned counsel appeared for the appellant who was also virtually present from prison. Mr. Omwenga learned prosecution counsel appeared for the State. They both opted to canvass the appeal by relying entirely on the parties’ written submissions on record. 12. Our role as a second appellate Court was stated by this Court in Page 11 of 12

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Karani vs. R [2010] 1 KLR 73 as follows: Page 12 of 12

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“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 13. The issues of law for determination in this appeal are: whether there was a proper identification of the appellant; whether the trial court and the first appellate court failed to consider the appellant’s defence; and whether the appellant’s sentencing was justified as imposed by the first appellate court. 14. We are satisfied that the evidence on record shows that the appellant was known to PW1 and as submitted for the respondent we are precluded from interfering with that concurrent finding of fact by the trial court and the first appellate court. That being the main appellant’s challenge to Page 13 of 12

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his conviction, we are further satisfied that the first appellate Court did not err in determining that the ingredients of the offence of Page 14 of 12

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robbery with violence contrary to section 296(2) of the Penal Code were proved; being that the appellant was armed with a panga and actually cut the complaint on the neck as he demanded for money and took the Kshs.80.00 from the complainant’s table. 15. Sections 295 and 296 of the Penal Code state as follows: “295. Definition of robbery Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. 296. Punishment of robbery (1)Any person who commits the felony of robbery is liable to imprisonment for armed with any weapon or fourteen years. (2) If the dangerous offender or is offensive instrument, or is in company with one or more other person or persons, or if, at or Page 15 of 12

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immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other Page 16 of 12

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personal violence to any person, he shall be sentenced to death.” 16. We are satisfied that the evidence on record as per the concurrent findings of fact by the two courts below established that the appellant had committed robbery by stealing the Kshs.80.00, he was armed with the panga and which, in the process of stealing, he used it to strike and wound PW1. 17. In that respect, the first appellate Court imposed the mandatory prescribed sentence of death as per section 296(2) of the Penal Code. Was the sentence lawful as submitted by counsel for the respondent? We have examined the record and observe that the appellant was not warned about the enhancement of the sentence. There was no crossappeal, no notice to enhance the sentence was served upon the appellant, and there is no material on record showing that the appellant was warned. In Sammy Omboke & another v Republic [2019] KECA 561 (KLR) this cited its previous decisions on the point and held as follows: “26. In the instant appeal, there was no crossappeal by the prosecution for enhancement of sentence before the High Court nor was there a warning to the appellants by court that the sentence meted upon Page 17 of 12 them could be

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enhanced; and enhancement. there was Guided by no the notice judicial pronouncements of this Court above, we Page 18 of 12 of

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find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a cross-appeal and notice and or warning the judge had no jurisdiction to enhance the sentence.” 18. We are therefore satisfied that the enhancement of the sentence from life imprisonment to one of death was a procedural error that occasioned the appellant manifest injustice. The High Court as a first appellate court must warn or give notice to the appellant before enhancing a sentence. The requirement applies even if the law prescribes death as a mandatory sentence. 19. We decline to delve into the issue of the appellant’s alleged defense of self-defense which he never raised before the courts below and we uphold the respondent’s submissions in that respect. Our appellate duty is to review and correct the decisions and findings of the court below based on the record and arguments presented there. It is settled and trite law that fresh claims, pleas, or issues of law or fact that were never part of the original trial or lower appellate proceedings cannot be introduced or decided for the first time on a second appeal. In HKN v Republic (Criminal Appeal E097 of 2023) [2025] KECA 35 (KLR) this Court held as follows: “24. With regard to the afore-mentioned seven Page 19 of 12

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(7) grounds of law and fact raised for the first time on Page 20 of 12

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2nd appeal to this Court, we hasten to observe that those issues come too late in the day as they were neither court nor on raised before the trial 1st appeal to the High Court. Consequently, they fall beyond our mandate to determine, and for good reason. This Court has had occasion to consider the effect of raising an issue on appeal for the first time in, among other cases, Kenya Commercial Bank Ltd v James Osede [1982] eKLR where Hancox, JA, had this to say: “… that where the right of appeal is statutory, it is to be confined to points of law raised before and decided by the trial judge.” 25. The Court went on to observe: “It is not permissible for matters and issues not raised at the trial court to be raised for the first time on appeal. In this instance, permitting an issue to be raised for the first time in reply to the appellant is improper, as the appellant had no fair notice of this issue. Such an issue should not be decided on appeal.” Page 21 of 12

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20. In the premises we confirm the conviction of the appellant for the offence of robbery with violence contrary to Section 295 as read with section 296(2) of the Penal Code. We also partially allow the appeal by setting aside the death sentence imposed by the High Court and substituting therefor the imprisonment for life as was imposed by the trial court. Dated and delivered at Kisumu this 25 th day of September, 2026. ASIKE-MAKHANDIA ……….…………. ……… JUDGE OF APPEAL E. C. MWITA ………………..…. ……… JUDGE OF APPEAL B. ONGAYA ………………..……. …… JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR Page 22 of 12

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