Elements of robbery with violence
20.According to the Court of Appeal in the case of Oluoch vs. Republic  KLR: -
21.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. Therefore, proof of one or more of the elements beyond reasonable doubt founds a conviction for the offence of robbery with violence (Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007)
22.In this case PW1 stated on 07.08.2017, he was walking home from Sachora. He noticed the presence of the appellant who at times walked behind him, overtook him and again pulled back. The complainant met fellow villagers, with whom he talked. Upon realizing the presence of the villagers, the appellant walked ahead and entered into a forest. PW1 parted with the villagers and then the appellant emerged from the bush saying he had been looking for him. PW1 did not recognize the voice of the appellant but stated that he knew it was the appellant because he had been walking together along that path. The appellant then knocked down PW1 and stabbed him on both sides of the face near the ears and the lower and upper left eye. The appellant then hit PW1 on the chest and gripped his throat tightly. PW1 suspected that the object used was a knife. He saw the appellant as there was moonlight. The appellant removed PW1’s money from the inner left pocket. PW1 was rescued by persons who escorted him home. He regained consciousness at Longisa hospital.
23.PW5-Isaiah Cheruiyot Koros, testified that on the material date at around 10:30 p.m. he saw PW1 as he wanted to close the door to the cow shed. He later met the appellant who had a torch and was carrying open shoes. A short while later he had people screaming from the road. He rushed to the scene. He found PW1 lying down and was bleeding from the right ear, forehead and head. Together with others, they assisted PW1 to his home. They also escorted the complainant to hospital. PW5 identified the torch (P Exh3) he also identified the open shoe (P Exh4). According to PW5, he had just seen the appellant with the two items before finding them at the scene of the attack.
24.On cross examination, PW5 stated that he did not know the appellant before the incident. He stated that the sandal is something that can ordinarily be found in the market. He also could not identify the torch by any mark.
25.PW3, a clinical officer testified that he examined PW1 for purposes of filling a P3 form. He acknowledges that he did not refer to treatment notes because PW1 did not bring them along. He relied on the history that PW1 had been treated at Tenwek and Longisa. He saw that PW1 had 5 stitched wounds on the head and a cut wound on the right periorbital area near the eye which was stitched and the right eye was red. He also noted that PW1 complained of pain on the right chest. He stated that the injuries were about 9 days old.
26.PW2 Kiprono Mutai testified that the appellant woke him up at 3.00 a.m on 07.08.2017 inviting him to go they spend the elections money. They left to go drinking. He noticed that the appellant had no shoes on his feet. They walked together to Chombek then they waited to board a vehicle. The appellant pulled out ward of notes. PW2 was suspicious fearing that it was stolen money. PW2 noted that the appellant was willing to spend money on a taxi and showed him that he had a lot of money. The following day he learnt that someone had been robbed. He therefore suspected the appellant. He had seen the appellant with blood on his fingers.
27.PW4 AP CPL Richard Kipyegon Ngeno testified that on 18.08.2017 he received a warrant of arrest against the appellant for alleged robbery. That the reportee was the wife of PW1. She led the police to arrest the appellant. They however did not recover any exhibits from the appellant.
28.PW6 PC Patrick Mugo of Melelo police station testified that on 16/08/2017 PW1 made a report of robbery against the appellant. They were led to the scene of the alleged robbery by a witness. They recovered a torch, sandal and jacket at the scene. The jacket had a torn pocket and some blood stains. PW1 identified the jacket as his.
29.PW7, a clinical officer Leah Chelole of Longisa hospital testified that she reconstructed the treatment notes for PW1. She stated that she used the history given to her by the wife of PW1 and the information on the treatment notes. She also stated that the lady did not give her name.
30.In his defence the appellant stated that on 16.08.2017, a lady called him whom he noticed was his ex-wife. He opened the door for her and she was in a company of four men. They wanted to know the whereabouts of his new wife. He was then arrested. The defence was mere afterthought and make-up.
31.The court has keenly paid attention to the subtleties of the evidence adduced, and the grace the said evidence gives to the elements of the crime of robbery with violence.
32.The incident occurred during the night. Care should be taken to ensure the appellant was positively identified as the perpetrator of the offence. The court in Wamunga v. Republic (1989) KL 424 at 426 stated that:
33.The court has carefully interrogated the circumstances in which identification was done.
34.PW1 testified that there was moonlight and he had enough encounter with the appellant as to have properly identified him. PW5 gave a testimony which corroborated the evidence by PW1 in material respects. On the material day at around 10:30 p.m. he saw PW1 as he wanted to close the door to the cow shed. He later met the appellant who had a torch and was carrying open shoes. A short while later he had people screaming from the road. He rushed to the scene. He found PW1 lying down and was bleeding from the right ear, forehead and head. Together with others, they assisted PW1 to his home. At the scene he saw the items the appellant was carrying on the material day. The evidence by the prosecution squarely placed the appellant at the scene of crime.
35.Evidence by PW1 and other witnesses including the medical evidence confirmed the injuries the complainant suffered during the robbery. These pieces of evidence prove the weapon used was dangerous and that violence was applied upon PW1 during the robbery.
36.Accordingly, the prosecution proved beyond reasonable doubt that; (i) the offenders were armed with dangerous and offensive weapon or instrument; and (ii) at or immediately before or immediately after the time of the robbery the offender wounded, beat, struck or used other personal violence on the victim. The offence of robbery with violence was proved beyond reasonable doubt.
37.On the basis of the evidence adduced, the appeal on conviction lacks merit and fails.