1.The two appellants Hewett Vusena Kesusa and Terence Atsango Shikutwa are condemned prisoners having been sentenced to death by the High Court at Eldoret, (Kimondo & Ngenye, JJ.) in a judgment delivered on 31st July 2014. The learned Judges did so while dismissing the appellants’ appeal by which they had challenged their conviction and sentence of 14 years imposed by the Kapsabet Senior Resident Magistrate (Hon. Lorot) on 7th September, 2011 for the offence of robbery with violence. The learned Judges found the term sentence to be illegal and enhanced it to death.
2.In so enhancing the sentence, the learned Judges were cognizant that the State had not cross-appealed or given a notice of enhancement of sentence and that it had not itself warned or cautioned the appellants that, there was the likelihood of such enhancement were they to proceed with their appeals before that court. Finding umbrage under the decision of Stanley Nkunja v Republic eKLR by a differently constituted bench of this Court sitting at Nyeri; the learned Judges took the view that where the sentence is illegal, the court is entitled to enhance it without notice. And so it did.
3.We think, with respect, that an appellant is entitled, as a matter of procedural and substantive due process or natural justice, if you like, to be given notice of the possibility of so grave a possibility as enhancement of a sentence, especially when it is as dire as converting a 14-year term to a death sentence. It is a matter of fairness and a recognition of the inherent dignity of the prisoner. It implicates fair trial rights more so where, as here, the appellants did not have the benefit of legal representation before the High Court. It cannot be right or fair, whichever way one looks at it, that so grave a consequence should be sprung upon an appellant by the court at judgment stage. It does seem to us to be an unfair tackle and a terrible ambush that cannot be countenanced. An appellant should be warned of the possibility of enhancement so that he makes an informed choice whether or not to take the risk by prosecuting the appeal. It matters not that the sentence is an illegal one - fairness demands notice and/or warning and this Court has said so in a consistent line of authorities.
4.In Sammy Omboke & another v Republic  eKLR, this Court sitting in Kisumu (Asike-Makhandia, Kiage and Odek, JJA.) made reference to some of those authorities and warrants citation at length;
5.The sentence of death passed by the High Court cannot therefore stand and, were we to uphold the conviction, we would restore the 14-year sentence imposed by the trial court on the basis only of lack of notice or warning which render the enhancement a nullity for want of jurisdiction.
6.We now turn to the question of whether the appellants were properly convicted. Mr. Oyaro, learned counsel who argued the appeal on behalf of the appellants addressed us on the “Supplementary Grounds of Appeal” filed on 15th July, 2020 which should properly have been titled Supplementary Memorandum of Appeal. In it, the first appellate court is faulted for falling into error by, inter alia; basing the conviction on inconsistent and incredible recognition and/or identification evidence which had a high probability of error in the circumstances; failing to find that an identification parade was necessary; failing to determine whether the charge was properly investigated; upholding, the conviction without any recoveries having been made; and failing to find that the appellants were not informed of their rights, including the right to call witnesses.
7.Learned counsel pointed out that no weapons were produced to prove that the assailants were armed and that the investigating officer, a crucial witness, was not called to testify and no reason was tendered for that omission. Turning to identification, Mr. Oyaro submitted that the offence is alleged to have occurred at 11.00p.m. in the night and that there was only one identifying witness (PW2) to the alleged offence, which was to the effect that on 17th November, 2005 at Kapchesir Village, Koibarak Location of Nandi South District, the appellants jointly with others not before the court robbed Gilbert Adede of various household goods, personal apparel and documents, all valued at Kshs.676,500, and at the time of such robbery wounded the said Gilbert Adede.
8It is common ground that the complainant was unable to identify any of the assailants and the appellants’ conviction was based solely on the evidence of his wife Judith Khadede (PW2). In dealing with her evidence, the learned Judges had this to say;
9.The issue that arises in this appeal is whether the learned Judges properly appraised and re-evaluated the evidence of identification or recognition by the single identifying witness, and whether the same was free for the possibility of error. In her testimony, she stated that she was asleep with her husband when she heard noises outside. The door to their 5-bedroom house was broken and she saw a large group of people. She then said, tellingly,She later on stated that she saw the 1st appellant who had been their worker, leading the group and that she “recognized them from their touches and his voice.” When cross-examined by the said appellant, she is recorded as answering thus;
10.And on being cross-examined by the 2nd appellant, the witness is recorded as having testified as follows;
11.It is of significance that whereas PW2 did not say so in the course of her testimony, her husband PW1, in cross-examination stated that when the assailants entered the house PW2 ran and hid in the bedroom and remained in “the hideout” until after the thugs had escaped. In fact, they asked him where his wife was because they did not see her during the incident.
12.Bearing in mind the self-evident fact, recognized in many judicial pronouncements, that identification, especially in difficult conditions is a fertile ground for miscarriage of justice due to the ever-present risk of mistaken identity, which calls for a great deal of conscious circumspection on the part of the court to ensure that the identification or recognition is free from the possibility of error, we are far from satisfied that the testimony of PW2 as captured above lends assurance that no error did or could have occurred. We note in particular the witness’ failure to answer the critical question of what type of clothing the 1st appellant was wearing; her failure to mention the assailants she mentioned in court when she recorded her statement with the police; her failure to mention the appellants to the neighbours who came to her house after the incident; and her not taking the police to their houses. Indeed, we find it incredible that she should have been so confident in fingering the appellants as being part of the gang of thugs not having herself been in close proximity to them, as she was in hiding, when her husband (PW1) and daughter (PW3) who had close and personal, if traumatic, encounters with them were unable to do so. In fact, PW3 was very categorical that the appellants were her neighbours at home but; “I did not see the two in the attack. I was attacked by many people. There was no light.” This last part of the evidence was clearly exculpatory and we find it difficult to appreciate how the two courts below felt confident to return and affirm the convictions in the circumstances.
13.It is worth repeating what this Court stated in Kiarie -vs- Republic  KLR 739;
14.We are not persuaded that the evidence tendered by the prosecution in this matter was anything close to watertight. The learned Judges did refer to that very decision and it is a surprise to us that they nonetheless upheld the conviction of the appellants given the state of the evidence.
15.The law on identification was later succinctly rendered by this Court in Wamunga v Republic  KLR 424 at p.430 thus;
16.We think, with respect, that had the learned Judges paid full attention to the law and applied it scrupulously to the evidence beyond merely citing it, they could have come to the inescapable conclusion that the circumstances of the robbery were not free from the possibility of error, the evidence was neither cogent nor watertight, and that the conviction of the appellants was therefore unsafe.
17.Having come to that conclusion, we do not consider it necessary for us to delve into the rest of the grounds urged by the learned counsel for the appellants and responded to by Miss Githaiga, learned counsel for the Republic. We commend both counsel for the industry they displayed in the preparation for the appeal as evidenced by the written submissions and bundle of authorities filed herein.
18The upshot of our consideration of this appeal is that it is for allowing. We quash the conviction and set aside the sentence. In consequence, the appellants shall be set at liberty forthwith, unless otherwise lawfully held.
DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF APRIL, 2022P. O. KIAGE................................JUDGE OF APPEALA. MBOGHOLI MSAGHA................................JUDGE OF APPEALF. TUIYOTT................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR