Isaac Kipngetich Bett alias Karedio, Jackson Cheruiyot Koskei alias Ndashara & Joshua Maranga Makori alias Bonny v Republic

pangas and rungus, Page 2 of 25

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they robbed Father Jeremiah Roche Gerald of a computer laptop make Toshiba, two mobile phones make Nokia 1200 serial number IMEI 359554013023315 and Nokia 2323 serial number IMEI 351952032257039, one digital camera, one CD player, one DSTV remote controller, one L.G television remote controller, one Safaricom modem and one black torch all valued at Kshs. 180,000/- and at or immediately before or immediately after the time of such robbery, they used actual violence thereby killing the said Father Jeremiah Roche Gerard. 2. The 1st appellant faced an alternative count of handling stolen property contrary to Section 322 (2) of the Penal Code. It was alleged that on the 16th day of December 2009 at Motobo estate in Kericho District other than in the course of stealing, he dishonestly retained part of a digital blood pressure detector, skin disease detector, namely Epogam Efalith knowing or having reason to believe them to be stolen property. 3. The 2nd appellant faced an alternative count of handling stolen property contrary to Section 322 (1) of the Penal Code. It was Page 3 of 25

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alleged that on 9th February 2011 at Kericho township otherwise Page 4 of 25

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than in the course of stealing, he dishonestly retained one CD player make Sony, knowing or having reason to believe it to be stolen property. 4. The appellants and their co-accused persons denied the charges and a trial ensued in which the prosecution marshalled 14 witnesses. At the close of the trial, Ong'udi, CM (as she then was) in her judgment dated 19th August 2011 in the definitive paragraphs stated: "The exhibits EXB 2 and 5 were personal items. PW1 says he used to see them in the deceased's bathroom when he did cleaning. These items EXB 2 and 5 were among items recovered from the house of accused 1 on 16/12/09. An inventory showing the recovery was produced as EXB 31. Also recovered was a sim card plate in respect of Mobile No.0717287383 - card Serial Number is 89254028701002873832. (EXB 30). PW11 who works with Safaricom confirmed and demonstrated before this court the Nokia 1200 phone EXB 3a was the deceased's phone, and it's the one mentioned in the charge sheet. From the reports EXB15a- c this phone had a number of sim cards inserted into it for use after the deceased's death. The first to be used was 071917912 on 11/12/09 at 6.19 am. From the record (EXB15a) the sim card No. 0717287383 (EXB 30) was inserted to call 0719179912 on 11/12/09 8.17 am. Thereafter there was a lot of communication between the Page 5 of 25

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numbers 0719179912 (From EXB 15a) to No. 0717287383 and 0728156108. Page 6 of 25

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From the inventory produced herein (EXB 31) the sim plate for No. 07287383 (EXB 30) was found with Accused 1. What could he be doing with (EXB 30) if the line is not his? Piecing EXB 30,31,2 and 5 together I do find Accused 1 was found with real incriminating evidence just four (4) days after the deceased's death. Just on the morning of the Robbery he was using the deceased's stolen phone! This evidence (facts and circumstances) point irresistibly to the guilt of the 1st accused. He did not offer any explanation for the possession of these items and neither did he tell the court where he was on the night of 10th – 11th December 2009. This finding squarely falls within the doctrine of recent possession. And relying on the case of Mwangi vs Republic [2005] 2 KLR I do make the inference that Accused 1 was one of those who robbed and killed the priest Jeremiah Roche. I convict him of the charge of robbery with violence." (Record of Appeal, Page 130). For Accused 2 the evidence of the mobile number was not established. The investigating officer (PW13) said he recovered a C.D player (EXB 4) in the house of the accused in Litein. Again, PW1 said he used to see this CD player in Father Roche's house. 2nd accused tried to deny this and even called a witness (DW1) to support him but the witness said he knew nothing about this case. He also said (EXB 4) had been recovered before his arrest but this was neither here nor there. He gave no explanation for being in possession of the priest’s property on 19/1/10 about 40 days after the robbery. He does not deny having been arrested in Litein. The O.B reports from Page 7 of 25

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Litein which he called for states that he had been arrested and placed in cells. For his case I will apply same doctrine of recent possession as was the case of Mwangi v Republic Page 8 of 25

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[2005] 2 KLR. I find that he was part of that gang that robbed and killed Father Roche. I convict him of the main count of robbery with violence accordingly." (Record of Appeal, Page 131) Coming to Accused 4. He was sold by Accused 8 who led the police to his house. And by coincidence, he was found to stay in one of Accused 1's rental rooms. Accused 1's wife referred to this tenant who I find to be Accused 4. A jungle blood and soil stained trouser (EXB 22) was found hidden under his mattress. The blood on the trouser was found to match that of the deceased Father Roche. This was on 27/12/09 about 2 weeks after the robbery. What was deceased's blood doing on a trouser in Accused 4's house? The only answer is that it came to be stained in the course of the robbery and killing of the deceased. No one else could explain it. I therefore do find that the doctrine of recent possession applies to Accused 4 as well. He had in his possession an item which is not ordinarily an item of trade. It was a trouser stained with the deceased's blood. This was strong circumstantial evidence linking him to the offence. I convict him of the main count of Robbery with violence." (Record of Appeal, Pages 131-132). 5. Aggrieved by the said verdict, the appellants filed separate appeals at the High Court being High Court Criminal Appeal Nos. 40 of 2011, 41 of 2011 and 42 of 2011 which were consolidated, heard and determined in the judgement dated delivered on 31st July 2014 by Sergon, J and Page 9 of 25

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Omondi, J (as she Page 10 of 25

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then was) the subject of this appeal. In the definitive paragraphs, the learned justices stated: Regarding the 1st appellant: "We have considered the evidence on record. The 1st Appellant was found with the deceased's blood pressure detector and skin disease detector just four days after the robbery. PW1, who had worked for the deceased for five years, positively identified these items as belonging to Father Roche. The Safaricom data confirmed that the 1st Appellant's SIM card was inserted into the deceased's stolen phone on the morning after the robbery. The inventory (Exhibit 31) was signed by the 1st Appellant and his wife. He offered no explanation for his possession of these items. We find that the trial court properly applied the doctrine of recent possession." (Record of Appeal, Pages 223225) Regarding the 2nd Appellant: "The 2nd Appellant was found with the deceased's CD player on 19th January 2010, about 40 days after the robbery. PW1 positively identified the CD player as nd belonging to the deceased. The 2 Appellant’s defence that the CD player was recovered before his arrest was not supported by any evidence. He offered no explanation for his possession of the deceased's property. The trial court correctly applied the doctrine of recent possession and we uphold that finding." (Record of Appeal, Pages 223-225) Regarding the 3rd Appellant: Page 11 of 25

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"The 3rd Appellant was found with a trouser stained with the deceased's blood. DNA analysis Page 12 of 25

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confirmed that the blood on the trouser matched the deceased's blood sample. The 3 rd Appellant offered no explanation for how the deceased's blood came to be on his trouser. We find that the trial court correctly concluded that the only reasonable inference was that the trouser was bloodied in the course of the robbery and murder of Father Roche." (Record of Appeal, pages 223- 226). 6. In this second appeal, the appellants are seeking to overturn this verdict. In their memorandum of appeal dated 11 th July 2026, drawn and filed by the appellant’s counsel Mr. Hesbon Matoke, the appellant cited 12 grounds of appeal which can safely be condensed into two grounds, namely: (a) their conviction was based on insufficient evidence; and (b) the two courts below failed to properly evaluate the evidence. The appellants pray that: (a) their appeal be allowed; (b) their convictions be quashed; (c) the sentences imposed upon them be set aside; and (d) they be set at liberty unless otherwise lawfully held. 7. We heard this appeal virtually on 15th July 2026. Learned counsel Mr. Hesbon Matoke Nyagaka relied on his written submissions and case digest dated 11 th July 2026. Learned counsel Mr. Omutelema, Senior Assistant Director of Public Page 13 of 25

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Prosecutions representing the respondent relied entirely on his written submissions and case digest dated 13 th July 2026. 8. In his submissions, Mr. Matoke faulted the two courts below for finding that the prosecution had proved the offence of robbery with violence against the appellants beyond reasonable doubt. He argued that the cardinal principle of criminal law is that the burden of proof rests throughout upon the prosecution and never shifts to an accused person save in exceptional statutory circumstances. It was his submission that the prosecution did not substantiate its case beyond reasonable doubt. He cited Sawe vs. Republic [2003] KLR 364 in support of the proposition that suspicion however strong cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt. 9. Counsel cited absence of direct evidence and submitted that the prosecution relied on circumstantial evidence that did not meet the legal threshold of unbroken cogent, and complete chain linking the appellants to the crime. He also cited gaps and inconsistencies in evidence, such as serial number Page 14 of 25

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discrepancies Page 15 of 25

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and lack of evidence in support of the ownership of the alleged stolen items which he argued undermined the inference of guilt. He also cited absence of forensic evidence linking any of the appellants to the crime scene. Counsel argued that no fingerprints were recovered from the scene which matched any of the appellants’ finger prints. He also argued that no DNA evidence was adduced. Further, although the investigating officer alleged that certain recovered items bore blood stains, no Government Chemist report was produced linking such blood to the deceased or to any of the appellants. In support of this assertion, counsel cited this Court’s decisions in Abanga alias Onyango vs. Republic, Criminal Appeal No. 32 of 1990 and Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR. 10. Regarding the 1st appellant, Mr. Matoke argued that the prosecution relied principally on the alleged recovery of a pressure detector, an apogram detector, a wallet, a panga, a slasher and several SIM card plates recovered from his house Page 16 of 25

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during a search conducted by police officers. Referring to the evidence of PW1, counsel maintained that the pressure detector Page 17 of 25

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and apogram detector were never listed among the items allegedly stolen from the deceased's residence. He pointed out that the inventory of missing items consisted of a laptop, mobile phones, a CD player, remote controls, a digital camera, a modem and a torch. It was his submission that the prosecution failed to establish any nexus between the items recovered from the 1st appellant and the alleged robbery. Mr. Matoke submitted that the prosecution failed to prove that the recovered items belonged to the deceased or that possession was recent, making the doctrine inapplicable. He faulted the High Court for not adequately re- assessing the evidence as a first appellate court. Counsel accused the first appellate court of affirming the trial court’s findings without addressing critical evidentiary gaps and inconsistencies. 11. Regarding the 2nd appellant, Jackson Cheruiyot Koskei alias Ashara, he argued that the prosecution sought to link him to the offence through the alleged recovery of a CD player and through mobile telephone number 0719179912. Further, the prosecution did not produce any documentary evidence proving that the CD Page 18 of 25

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player belonged to the deceased or to the church, and, no Page 19 of 25

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purchase receipt, serial number, inventory or ownership documents were tendered before the court. He also argued that the investigating officer himself conceded that the serial number of the CD player had not been recorded. 12. Mr. Matoke maintained that the 2nd appellant consistently denied ownership of the alleged telephone number and added that his number was 0721143387. He referred to PW11’s evidence who admitted during cross-examination that telephone number 0719179912 was not registered in the name of any person. Consequently, the prosecution failed to prove that the disputed number belonged to the 2 nd appellant or that he ever used it. He cited Arum vs. Republic [2006] eKLR to argue that for the doctrine of recent possession to apply, the prosecution must establish, inter alia, that the property was positively identified as belonging to the complainant and that it was found in the possession of the accused. He also cited Abdi Yusuf Maalim v Republic [2015] eKLR, in which this Court quashed a conviction after finding that the allegedly stolen phone had not been positively identified Page 20 of 25 as belonging to the

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complainant. Further, no Page 21 of 25

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identifying marks or serial numbers were produced before the court. 13. Counsel also submitted that the prosecution failed to positively identify the CD player as property stolen from the deceased, and also, it failed to establish that telephone number 0719179912 belonged to or was used by the 2 nd appellant. Further, the prosecution failed to prove ownership of the mobile phone allegedly belonging to the deceased. He argued that the charge sheet referred to a Nokia handset bearing serial Safaricom number witness 359554013023310. relied 359554013023315, on According handset to while the serial number this material counsel, inconsistency was never satisfactorily explained by the prosecution. 14. Mr. Matoke maintained that the prosecution failed to establish a complete evidential chain connecting the appellants to the robbery and subsequent murder of the deceased. Lastly, it was his submission that the prosecution evidence left substantial gaps and unanswered questions which ought to have been resolved in favour of the appellants. Page 22 of 25

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15. The appeal was strongly opposed by respondent’s counsel Mr. Omutelema. He maintained that the ingredients of the offence of robbery with violence were proved to the required standard as was laid down in Rex vs. Kipkering Arap Koskei & Another [1949] 16 EACA 135. He submitted that the 1st and 2nd appellants were found in recent possession of the deceased’s stolen property while the 3 rd appellant was found in possession of blood-stained trousers, which upon analysis, matched the deceased’s blood. It was his submission that in absence of an explanation by the appellants as to how they came into possession of the said items, as was held in Peter Nyongesa Wanyonyi & 2 Others vs. Republic [2004] eKLR, the circumstances pointed to the appellants as the perpetuators of the offence. He emphasized that the 1 st and 2nd appellants were respectively found in recent possession of the victim’s property, namely mobile phone and CD player. Counsel cited the definition of possession in Section 4 of the Penal Code which includes not only having possession but also knowingly having anything in actual possession or custody. He cited Page 23 of 25

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Hussein Salim vs. Republic [1980] meaning of KECA 9 Page 24 of 25 (KLR) which defined the

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possession. He stressed that the 1 st appellant was arrested on 16th December 2009, 4 days after the robbery and a digital blood pressure detector and an apple gram detector were recovered from his house. Further, PW14 prepared an inventory which the 1st appellant signed and his wife countersigned it. He also argued that the 2 nd appellant was arrested on 19th January 2010 and upon searching his premises, the deceased’s LG CD Player was recovered from his house. An inventory was prepared but the 2nd appellant refused to sign it. The CD player was positively identified by PW1 as belonging to the deceased and as one of the deceased’s stolen items. Mr. Omutelema maintained that the 1st and 2nd appellants were in possession of stolen property. Further, communication records from Safaricom corroborated the evidence against the 1st and 2nd appellant. He referred to PW11 (Safaricom’s Liason Officer Mr. Weldon Siongok), who testified that on 11th December 2009, (the following morning after the robbery), a new Sim card number 01719179912 was inserted into the deceased’s stolen Nokia 1200 phone. It was his submission that digital records showed Page 25 of 25

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that the cell phone line was used to call the 1 st appellant. Further, PW 14 Cpl Murunga Page 26 of 25

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testified that though not registered, investigations revealed that the 2nd appellant owned and operated the line. 16. Regarding the question whether the trial court and the 1 st appellate court properly applied the doctrine of recent possession, counsel submitted that the 1 st appellant was found in possession of the deceased’s property 4 days after the robbery, while the 2nd respondent was also found with the deceased’s property one month after the robbery and both did not explain how they acquired the possession. Therefore, the doctrine of recent possession was properly proved because: (a) the property was found with the suspects; (b) the property was positively identified as the deceased’s property; (c) the property was stolen from the complainant, and (d) the property was proved to have been stolen from the complainant. To buttress the above assertion, counsel relied on Erick Otieno Arum vs. Republic [2006] eKLR. Mr. Omutelema also stated that there is evidence of the sim card being inserted in the deceased’s phone, and that PW1 and PW13’s evidence clearly established that the 1st and 2nd respondents were found in possession of the stolen items. Page 27 of 25

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He asserted that property, having established Page 28 of 25 possession of stolen

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the 1st and 2nd respondents had a duty under Section 111 of the Evidence Act to explain their possession. 17. Regarding the 3rd appellant, Mr. Omutelema submitted that blood samples found in his trousers and cotton wool recovered from him matched the deceased’s DNA samples. He referred to the evidence of PW13 who testified that the 3 rd appellant was found in his house and a search led to recovery of items including long blood stained trouser hidden under the mattress (exhibit 22) which were submitted for analysis at the Government Chemist. Further, PW8 analyzed the exhibits and concluded that the DNA profiles generated from the blood in the cotton wool and the trousers matched the DNA profile of the deceased. Counsel submitted that the 3 rd appellant had a duty to explain how the deceased’s blood got into his clothes. Further, the DNA profiles irresistibly pointed to the 3 rd appellant and it is incapable of any other explanation by any other hypothesis other than the 3rd appellant’s guilt. It was also Mr. Omutelema’s submission that the two courts below properly considered the appellants appellants were afforded a fair hearing. Page 29 of 25 defences, that the

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18. Regarding sentence, Mr. Omutelema submitted that the sentence of death meted by the trial court and upheld by the High Court is lawful and urged this Court to uphold both the conviction and sentence. 19. 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 at 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) and Muhia vs. Republic (Criminal Appeal E010 of 2022) [2025] KECA 1572 (KLR) (3 October 2025) (Judgment)). 20. The germane issue in this appeal is not whether the robbery in question took place as detailed in the charge sheet, and by the prosecution witnesses, but whether the circumstantial evidence adduced by the prosecution irresistibly pointed to the appellants as the offenders. Granted, the key prosecution evidence was not direct evidence. Page 30 of 25 It was purely

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circumstantial, mainly based on Page 31 of 25

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the doctrine of recent possession. This Court has consistently established that the doctrine of recent possession is not an independent rule of law, but rather a specific component and application of the ordinary rules governing circumstantial evidence. (See Antony Kariuki Kareri vs. Republic [2004] KECA 107 (KLR)). 21. In Lubanga & Another vs. Republic (Criminal Appeal 63 of 2018) [2026] KECA 63 (KLR) the prosecution relied on the doctrine of recent possession because the appellants were found in physical possession of items that had been violently stolen from the complainant shortly before their arrest. The Court evaluated the thresholds required to safely sustain a conviction based on this presumption. The Court reiterated that the prosecution must; (a) conclusively establish that the stolen items were found in the direct or constructive possession of the accused; (b) the recovered goods must be explicitly identified as the exact property belonging to the complainant; (c) it must be independently verified that the items were indeed stolen during the commission of the offense; (d) the time frame between the Page 32 of 25

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actual theft and the discovery of the property must be short. The Page 33 of 25

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court emphasized that "recency" depends entirely on the nature of the property and how easily or quickly it can change hands in the open market. Once the above elements are established, a presumption of fact arises. If the accused fails to provide a reasonable or plausible account of how they came to possess the items, the court is legally justified in concluding they are either the thief or the receiver of stolen property. 22. In Gichunge & Another vs. Republic (2024) KECA 614 (KLR), this Court explicitly noted that when direct identification is weak or missing, a conviction can still safely stand on the strength of circumstantial evidence anchored on the doctrine of recent possession. The Court treated the possession of a weapon/item linked to the scene as a vital piece of the broader circumstantial puzzle to connect the appellants to the crime. 23. In Epeyon & Another vs. Republic (2024) KECA 287 (KLR), the state opposed a robbery with violence appeal by submitting that the case was robustly proven through circumstantial evidence via the application of the doctrine of Page 34 of 25

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recent possession. This Court upheld this view, confirming that the dynamic shift Page 35 of 25

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in the burden of proof (requiring the accused to explain how they obtained the items) only arises as a rebuttable presumption of fact within the wider framework of circumstantial circumstances. 24. The definitive question in this appeal is whether the doctrine of recent possession was proved in this appeal. The trial court was satisfied that the doctrine of recent possession was established. As the earlier cited excerpts show, the first appellate court re- evaluated the evidence and was satisfied that the appellants were found with recently stolen property. We have carefully re- evaluated the evidence and the concurrent findings by the two courts bellows. We are satisfied that there is compelling evidence that the 1st appellant was found with the deceased's blood pressure detector and skin disease detector just four days after the robbery. PW1, who had worked for the deceased for five years, positively identified these items as belonging to the deceased. Also, Safaricom data confirmed that the 1 st appellant's SIM card was inserted into the deceased's stolen phone on the morning after the robbery. The inventory Page 36 of 25

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(exhibit 31) was signed by the 1st appellant and his wife. The 1st appellant offered no explanation Page 37 of 25

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for his possession of these items. We find that the trial court properly applied the doctrine of recent possession and properly found that the 1st appellant was correctly implicated as one of the robbers. 25. As for the 2nd appellant, there is clear evidence that he was found with the deceased's CD player on 19 th January 2010, about 40 days after the robbery. PW1 positively identified the CD player as belonging to the deceased. The 2nd appellant's defence that the CD player was recovered before his arrest was not supported by any evidence. He offered no explanation for his possession of the deceased's property. The trial court and the 1 st appellate court correctly applied the doctrine of recent possession. We find no reason to disturb the concurrent findings by these two courts. 26. Regarding the 3rd appellant, he was found with a blood stained trouser. Upon being subjected to DNA analysis, the blood matched the deceased's blood. The 3 rd appellant offered no explanation as to how the deceased's blood found its way to his trouser. DNA test results showing a deceased person’s blood on a suspect’s clothes are treated as exceptionally Page 38 of 25

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high-value Page 39 of 25

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circumstantial evidence. (See Musimbi vs. Republic (Criminal Appeal 107 of 2020) [2023] KECA 287 (KLR) (17 March 2023) (Judgment)). The presence of the victim's blood in a suspect’s clothes or premises triggers a critical shift in the evidential burden of proof, forcing the suspect to provide a credible alternative explanation. When a conclusive DNA profile matches the deceased, courts view it as a powerful link that destroys fabricated alibis or alternative excuses. This Court in Musimbi vs. Republic (2023) KECA 287 (KLR), ruled that where a scientific match is established, no other inference can be drawn other than that the suspect had a hand in the death of the deceased, rendering the chain of circumstantial evidence complete and tightly linked. Faced with this piece of evidence, we have no reason to fault the trial court and the first appellate court’s findings that the only reasonable inference was that the trouser was stained by the deceased’s blood in the course of the robbery and/or murder of the deceased. 27. The other ground urged by the appellants is that, the learned Page 40 of 25

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judges of the High Court failed to properly evaluate the evidence. This Court has severally firmly established that while a trial court Page 41 of 25

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must evaluate all evidence and submissions, the final judgment does not need to be an exhaustive transcript or complete embodiment of every single word or defense raised. This jurisprudence dictates that a judgment satisfies the constitutional and statutory requirements of fairness if it accurately captures the complete embodiment of all the material evidence and submissions. In Mjengo Limited vs. Menengai Oil Refineries Limited [2025] KECA 85 (KLR), the Court of Appeal (though in the context of a civil appeal) clarified that a judgment need not be a "complete embodiment of all evidence led, as if it comprises proceedings," but rather must a focus transcript on a of the "complete embodiment of all the material evidence". Similarly, in Joseph Njoroge Gitau vs. Republic [2025] KECA 1208 (KLR), this Court affirmed that evaluating a defense does not require the judgment to act as a full transcript of that defense. The core requirement is that the judgment reflects a "complete embodiment of material" facts and submissions, rather than providing a verbatim transcript. We have read the Page 42 of 25

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judgment rendered by the High Court. The learned justices properly accounted for all the evidence tendered. A classic example is the Page 43 of 25

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excerpts cited earlier. The question whether the court considered all the evidence is also to be found on the court’s reasoning and findings which in our view are supported by the evidence on record. This ground of appeal collapses. 28. Regarding sentence, the trial court sentenced them to suffer death, correctly stating that is the sentence provided by the law. The first appellate court upheld both the conviction and sentence. On a second appeal, this Court strictly adheres to the principle that it cannot alter or review the severity of a sentence if that sentence is legally provided for under the law. While the historic Supreme Court ruling in Muruatetu & Another vs. Republic [2017] completely outlawed the mandatory application of the death penalty, it subsequently explicitly clarified that the death sentence itself was not abolished. Rather, it survives as a discretionary (See Francis maximum sentence. Karioko Muruatetu & Another vs. Republic; Katiba Institute &5 Others (Amicus Curiae) [2021] Page 44 of 25 KESC 31 (KLR)).

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Therefore, we cannot in the circumstances of this case interfere with the lawful sentence imposed on the appellants. Page 45 of 25

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29. The upshot of the foregoing is that this appeal fails both on conviction and sentence and it is hereby dismissed in its entirety. Dated and delivered at Nakuru this 2nd day of October, 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 46 of 25

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