1.The appellant was charged with Robbery with violence contrary to Section 296(2) of the Penal Code. It is alleged that on the 1st day of January 2018 at around 0300 hours at Tandui Farm in Transmara West sub county within Narok county, jointly with others not before court while armed with dangerous weapons namely AK47 rifles, bows and arrows, and swords raided Tandui Farm and robbed Peter Mutinda Kingule of two mobile phones, two bed sheets, a bag, five hens, and a Maasai lesso all valued at Kshs. 8,200/= and immediately before and during the time of such robbery shot dead the said Peter Mutinda Kingule.
2.The appellant faced a similar charge in count II, with particulars of offence being that on the 1st day of January 2018 at around 0300 hours at Tandui Farm in Transmara West sub county within Narok county, jointly with others not before court while armed with dangerous weapons namely AK47 rifles, bows and arrows, and swords raided Tandui Farm and robbed Michael Arap Limo of one mobile phone and a torch all valued at Kshs. 1,600/= and immediately before and during the time of such robbery used actual violence against the said Michael Arap Limo.
3.The prosecution called 7 witnesses while the defense gave sworn testimony and did not call any witnesses.
4.He was tried for the offence and convicted on the charge of robbery with violence and sentenced to death.
5.Having been dissatisfied with the conviction and sentence he filed this appeal.
6.The appellant cited 5 grounds in his petition of appeal that;i.That the trial court erred in law and fact in not diligently considering the doctrine of recent possession.ii.That the trial court erred in law and in fact in negating the fact that there was no direct evidence linking the appellant to this crime.iii.That the trial court erred in law and in fact in convicting the appellant relying on circumstantial evidence that erroneously pointed to the appellant’s guilt.iv.That the trail court erred in law in not considering the appellant’s defense pursuant to section 309, 169 CPC cap 75 laws of Kenya.v.That the trial court erred in law in not gauging the prosecution witnesses’ statements in court with their evidence of 1st report.
7.Ultimately, the appellant prayed that his appeal be allowed to the entirety.
8.The appeal was canvassed by way of written submissions.
The appellant’s submissions.
9.The appellant submitted that the doctrine of recent possession was not proved against the appellant beyond reasonable doubt. That the phone was found in constructive possession of PW3 hidden in her bag. PW3 had placed her sim card in the said phone. She could not therefore claim that she was holding it a security for borrowed alcohol. The evidence that the phone exchanged hands was only suspicion. No data from Safaricom was produced to show that the phone exchanged hands. PW3 did not confirm whether PW4 was present when the appellant gave her the phone as security. PW4 was too drunk having taken busaa and changaa. The evidence of PW4 had no probative value. PW1 did not positively identify the phone as his property. PW1 stated that the phone he had picked was red but what was produced in court was black with red keypads. PW1 had no proof of ownership. The appellant relied on the cases of Isaac Ng’ang’a Kahiga Alias Ng’ang’a Kahiga Vs Republic Nyeri Appeal 272 of 2005 eKLR, Mareino Mokaya Vs Republic  eKLR, Malingi Vs Republic  KLR 227, R Vs Hassans S/O Mohammed  25 EACA 121, Sawe V Republic 2003, Titus Wambua Vs Republic  eKLR and Evans Masese Mose Vs Republic  EACA 484
10.The appellant submitted that direct evidence did not place the appellant at the vicinity of the crime. No witness witnessed the robbery hence circumstantial evidence was not corroborated.
11.The appellant submitted that the appellant’s rights envisaged in Article 50(2) (g) and (h), 50 (2) (j) and (m) were infringed hence unfair trial. That he was not given the statements the prosecution intended to rely on hence there was no full disclosure. He was not informed or given legal representation despite his poverty. He could not understand Kiswahili or English. He was not given an interpreter. He relied on Section 382of the CPC and the case of Koome Vs Republic  KLR 575.
12.The appellant submitted that the evidence of PW7 and party of PW5 amounted to a confession that fell short of the standards of Section 25A Evidence Act
13.In conclusion, the appellant submitted that the court should weigh the conflicting evidence and come up with a finding of acquitting the appellant.
The respondent’s submissions
14.Duncan Ondimu, OGW, senior principal prosecution counsel submitted that the duty of this court as a first appellate court is laid down under Section 347 of the CPC. He cited the case of Japheth Gituma & 2 Others V R  eKLR.
16.The respondent submitted that there was theft of some property and the appellant was not the owner of the property. PW1 testified that on 31st December 2017 at around 3.30 a.m. he was attacked by thugs who took his phone, torch, five hens, two sheets and bags/ suitcases. During his testimony he was able to identify his phone which was recovered by the police. The same was marked as P Exh 1.PW2 in his evidence confirmed that during the robbery some items were stolen which included a phone recovery of which he participated. The phone was recovered while the appellant was drinking at the premises of PW3 where he had placed it as security for the alcohol he was taking. This was confirmed by PW4 in his evidence about how the phone was recovered. PW5- the investigating officer confirmed how the phone was recovered, and the phone was stolen during the robbery. There was no evidence to fault the trial court that PW1 was robbed of the property during the material day.
17.The respondent submitted that the thugs who attacked Tandui Farm where the deceased and PW1 were was more than one. The deceased was killed during the robbery. All the elements of robbery with violence were hence proved. The offender was armed with dangerous weapon or offensive weapon or instrument or in company with one or more persons or threat to use actual violence.PW1 testified that on the material day he was attacked by thugs and his colleague was in the other house. The thugs entered the house and assaulted him; he listed the items which were stolen from him which included his phone. The phone was recovered from the appellant. He stated that the thugs were 6 in number during the incident. His colleague was shot dead. Among the evidence which was tendered as exhibits included post mortem report in respect of Peter Mutanda Kingule which identified the cause of death to have been by a penetrating bullet through the chest
18.The respondent submitted that the evidence that was tendered against the appellant was circumstantial. The appellant did not explain how he came into possession of the phone. Therefore, justifiable conclusion can be drawn that the appellant actively participated in the robbery that took place at Tandui Farm.
19.The respondent submitted that the judgment contained points for determination and the reasons besides being signed by the judicial officer. The trial court considered the evidence of the appellant. Therefore, the appellant’s complaint as regards lack of compliance with Section 169 and 309 CPC should be dismissed.
20.In conclusion, the respondent submitted that taking into account all the evidence on record adduced by the prosecution and in the circumstances of the case, the prosecution did discharge its burden. The prosecution evidence tendered in court was not in any was discredited by the defence during cross examination. The trial court rightly convicted the appellant.
21.In the end the respondent invited the court to dismiss the appellant’s appeal for lack of merit and maintain the death sentence.
Analysis and Determination
22.As first appellate court, I should re-evaluate the evidence presented at trial and draw own conclusions. Except, I must bear in mind that I neither saw nor heard the witnesses when they gave their testimonies. Thus, demeanor is best observed by the trial court (Okeno vs. Republic  E.A 32).
23.I have perused the lower court record, written submissions and authorities relied upon by both parties. The broad issues arising herein are: -i.Whether the prosecution proved its case beyond reasonable doubt.; andii.What sentence is appropriate to the offence in the circumstances?
Elements of robbery with violence
24.According to the Court of Appeal in the case of Oluoch vs. Republic  KLR: -
25.The three elements of the offence of robbery with violence under section 296(2) of the Penal Code are, however, to be read disjunctively and not conjunctively. Thus, proof of one element beyond reasonable doubt founds an offence of robbery with violence (Dima Denge Dima & Others vs Republic,Criminal Appeal No. 300 of 2007)
26.In this case PW1 stated on 31/13/2017 at around 3.30 a.m. he was attacked by thugs. He was awoken by someone hitting the door. His colleague was on the other house. The deceased came out and he was shot dead. The thugs entered his house and they assaulted him. They stepped on his head. The thugs were 6 in number.
27.PW6 conducted the post mortem of the body of Peter Mutanda. He produced the postmortem report as P Exh 2. He formed an opinion that the cause of death was due to penetrating bullet through the chest
28.Accordingly, the prosecution proved beyond reasonable doubt that; (i) the offenders were armed with dangerous and offensive weapon or instrument; (ii) the offender was in company with one or more person or persons; and (iii) at or immediately before or immediately after the time of the robbery the offenders wounded, beat, strike or used other personal violence them.
29.Nonetheless, as the incident occurred at night, care should be taken to ensure the appellants were positively identified as the perpetrators of the offence. The court in Wamunga v. Republic (1989) KLR 424 at 426 had this to say:
30.I have interrogated the circumstances under which identification was done.
31.PW1 stated that he did not see the faces of the thugs-the people who attacked them. PW2 stated that they traced PW1’s phone to a changaa den. PW1stated that his phone had no pin/ password for unlocking it, hence, it could be used by anybody. The phone was recovered from PW3. PW3 testified that the appellant went to her house to drink alcohol and since he had no money, he gave her the phone as security for alcohol of Kshs. 300/= which he had consumed.
32.PW1 was able to identify his phone among 10 phones.
33.The only thing that links the appellant to the said robbery is the phone that was traced to him.
34.The appellant thinks that the trial court erred in law and fact in not diligently considering the doctrine of recent possession.
35.I have perused the record and the recording by the trial magistrate show that, the trial court was not only alive to, but understood and accordingly applied the doctrine of recent possession.
36.Contrary to the submission by the appellant, the trial court diligently set out the context and proof of recent possession of the phone, thereby, safely fastening a conviction thereon.
37.The phone was recently stolen from PW1. PW1 identified and proved the phone to be his. PW3 and PW4 identified the appellant as the person who had the phone barely a day after the robbery. These two witnesses come from the same village with the appellant and were not under any illusion as to the person who had the phone which he wanted to sell but eventually placed it as lien for alchol he consumed at PW3. The appellant did not provide any or reasonable explanation on how it came into his hands. Just as the trial court noted this was a perfect case to found conviction on the doctrine of recent possession.
38.PW3 testified that appellant had gone to her house to drink alcohol. The appellant was well known to her since they hailed from the same village. PW4 was in the company of the appellant as they went to take alcohol at PW3. I cannot find any element of mistake or delusion on the part of the witnesses in the identification of the appellant as the one who placed the phone to PW3 as Security for payment of the alcohol. The circumstances favour positive identification and do not exhibit any particular difficulty in the identification of the assailants.
39.Further evidence shows that the phone belonging to PW1 was recovered from PW3.
40.PW4 testified that they went with the appellant to the house of PW3.The appellant had no money to pay the Kshs. 300/= for busaa so he deposited the Techno phone. He identified the phone.PW5 confirmed that there was a robbery incident that had occurred on the material day as he recorded the statement of PW1 pertaining the robbery incident. He also visited the scene where the body of the deceased was. He recovered the mobile phone. The phone was identified by PW1 as it belonged to him. He produced the phone as P Exh 1.
41.It bears repeating that, the evidence adduced proves beyond reasonable doubt that, the appellant, in company with others and armed with dangerous weapons, robbed the complainants and also used violence on persons thereto immediately before or during or immediately after the robbery.
42.I have perused the lower court record; I find that there was a Kipsigis interpreter during the trial
43.Accordingly, the appeal on conviction fails
44.Death sentence is still lawful in Kenya, and may be imposed where circumstances so deserve. It has been observed that death sentence should be reserved for the highest and most heinous levels of robbery with violence or murder (see Prof. Ngugi J in James Kariuki Wagana vs Republic  eKLR); say, where excessive or brutal force has been employed, or offence committed in most bizarre manner, or in circumstances which expose many to danger or injury or death.
45.In the case before me, all the ingredients of robbery with violence have been met. The appellant, who was in the company of others, robbed the complainants, and in the course of the robbery, lethal force was used, and also they were armed with a dangerous weapon which was used to shoot and kill the deceased; the cause of death was stated to be a penetrating bullet though his chest.
46.The level of violence unleashed on the complainants is sufficiently serious to warrant death sentence or long period of imprisonment. A person was shot dead by the gang of thugs who attached the complainant and his colleagues.
47.The court is aware that death sentences were commuted by the president to life imprisonment. In the circumstances of this case, life sentence is appropriate sentence. I formally set aside the death sentence and impose life sentence upon the appellant. It is so ordered.
48.Right of appeal explained.