13.This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic  eKLR where the Court of Appeal stated:-
14.Similarly in the case of Okeno vs Republic  EA 32 where the Court of Appeal set out the duties of the appellate court as follows:-
Whether the charge sheet was defective.
15.Section 134 of the Criminal Procedure Code provides:-Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.
16.The appellant argues that the charge sheet was defective as it referred to one Kennedy Wachira Nginga as the complainant and further points out that the defect in the charge sheet is in the make of the phone whose make was Excel yet the prosecution led evidence which relates to a techno phone.
17.The Court of Appeal in Bernard Ombuna vs Republic  eKLR addressed the issue of a defective charge sheet in the following terms:-In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.
18.On perusal of the charge sheet, it is noted that the complainant is named as Rose Wanjiku Gitari. On perusal of the proceedings, it is confirmed that the name of the complainant was as stated in the charge. On the issue of the type of phone, it is my considered view that an error on the type of phone does not vitiate a charge. In Ogaro vs Republic  eKLR the Court of Appeal held as follows:-Under Section 267(1) of the Penal Code, every inanimate thing whatever which is the property of any person, and which is movable is capable of being stolen. A file is capable of being stolen. The omission to prove the value of the thing stolen is not fatal to the charge in as much as Section 137(c)(i) of the Criminal Procedure Code provides that if the property is described with reasonableness clearness in a charge or information it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name to whom the property belongs or the value of the property.
19.The record shows that the charge was read and explained to the appellant and he pleaded to it as required by the law. For that reason, it is not in doubt that the appellant from the time of plea was fully aware that he faced a charge of robbery with violence. The particulars of the charge made reference to the offence of robbery with violence and stated the date the offence. Thus the fact that the type of phone was mistaken did not in any way prejudice the appellant. Moreover, the complainant testified that the techno k7 phone was not hers. It is clear on record that the prosecution evidence did not relate to the techno phone as alleged by the appellant.
20.The appellant argues that the charge was defective for he was arrested on 2/12/2019 and taken to court on 23/1/2020 and the date of arrest was corrected. He states that the correction of the date was made and signature appended against the correction but the said amendment was not made before the court and the court did not call him to plead to the altered charge pursuant to Section 214 of the Criminal Procedure Code. Contrary to the submissions of the appellant, the record shows that the charge sheet has no amendment. Even if there was, such a discrepancy cannot affect the validity of the charge. The signature the appellant speaks of is the signature of the Honourable Magistrate who signed the charge sheet on the day the appellant took plea which must be always affixed during plea taking.
Whether the prosecution proved its case beyond any reasonable doubt;
21.The elements of the offence of robbery with violence were set out by the Court of Appeal in the case of Oluoch vs Republic  KLR:-Robbery with violence is committed in any of the following circumstances:-a.The offender is armed with any dangerous and offensive weapon or instrument; orb.The offender is in company with one or more person or persons; orc.At or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses other personal violence to any person….
22.According to the case of Dima Denge Dima & Others vs Republic Criminal Appeal No. 300 of 2007:-The elements of the offence under Section 296(2) are three in number and they are to be treated not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.
23.The term robbery has been defined in Shadrack Karanja vs Republic Criminal Appeal No. 119 of 2005  eKLR, the Court of Appeal stated as follows:-The same issue was raised in Moneni Ngumbao Mangi vs Republic Criminal Appeal No. 141/2005 (UR) and this court examined in detail the essential ingredients of the offence of robbery with violence under Section 296(2) of the Penal Code as analysed in Johana Ndungu vs Republic, Criminal Appeal No. 116 of 1995 (UR). After noting that the charge sheet in that case stated, as it does in this case, that the appellants “robbed” the complainant, the court continued:-The word robbed is a term of art and connotes not simply theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property.
24.From the evidence of the prosecution, the complainant was alone when she was accosted by the appellant and her mobile phone and power bank were taken. In the course of the act, the appellant slapped the complainant injuring her left eye and he threatened to kill her if she did not move out of Kagio area. The incident took place at around 10pm according to PW3 was the investigating officer. He testified that the complainant made a report that on 16/11/2019 after 10pm she was on her way home when she was attacked by the appellant who forcibly took her mobile phone and power bank. She further stated that the appellant slapped her on her face and injured her left eye. The complainant was sent to hospital for treatment and later the P3 Form was filled. PW2, a clinical officer stated that he examined the complainant who complained of left eye pain, lower lip wound and that she was in pain for about three weeks. The witness stated that the complainant had been treated at a private hospital on 17/11/2019 following an assault that occurred on 16/11/2019. The clinical officer examined her and found that her left eye was red and she had suffered soft tissue injuries. He formed the opinion that the probable type of weapon was a blunt object.
25.The incident took place at night and therefore care should be taken to ensure that the appellant was positively identified as the person who committed the offence. The court in Wamunga vs Republic (1989) KLR 424 at 426 had this to say:-Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
26.The complainant said that she recognized the appellant because she used to see him around the neighbourhood of Kagio market and that there was electric light at the scene at the material time. As the appellant accosted her, she said she was able to positively identify him. The witness further stated that she knew him as Simo. The appellant in his defence testified that on the material day he was in Nairobi taking avocados for export. He further testified that he knew the complainant for more than 6 years as she was his girlfriend. The appellant admitted to knowing the complainant and therefore the issue of identification was established. Furthermore, the trial court considered the appellant’s defence of alibi and noted that it was a mere denial and an afterthought. It is therefore my considered view that positive identification was proved.
27.The appellant submitted that the complainant did not prove that the items allegedly stolen belonged to her because she did not produce receipts or call witnesses. The complainant in her evidence said she had bought the power bank from one Mama Njeri and the phone from another shop. The complainant did not produce receipts for the said items. The appellant’s contention is that he should not have been convicted since there was no proof of ownership. Its important to note that the appellant or any other person did not claim ownership of the power bank and the phone. The trial court dealt with the issue and observed that it was not necessary to produce receipt in all cases of this nature. He further stated that ownership entails several rights including right of use to manage, enjoy and the right to convey property to others. I take judicial notice that in most cases after purchasing a power bank or a mobile phone, one may not keep receipts. Some documents could be misplaced and not found when one needs them. The appellant does not dispute that the complainant was in possession of the two items and that he took them from her. His bone of contention is only lack of proof of ownership. The reasoning of the trial court was that it was not necessary to produce receipts to prove the offence of robbery. In my view, this reasoning was correct in that failure to produce a receipt is not fatal to a case of this nature. The appellant was not charged with theft but with robbery with violence. The ingredients of robbery with violence are different from those of theft. In this case, the prosecution are required to prove that the appellant took property of the complainant using force or threats at, or immediately before or after the robbery. It is important to note that the items stolen were not recovered and were therefore not in court for identification by the complainant. The fact that the investigating officer talked of a techno phone having been stolen and which the complainant said that her phone was not techno type cannot be taken to mean the phone was not robbed of the complainant. The trial court believed her evidence and gave its reasoning on ownership which I agree with.
28.It is my considered view that failure to produce receipts for the phone and the power bank is not fatal to the prosecution’s case given the circumstances of this case.
29.I have carefully perused the evidence on record. I am of the considered view that the prosecution proved the case of robbery with violence as required by the law. It is my finding therefore that the conviction was based on cogent evidence.
Whether the sentence is harsh and excessive
30.The appellant was sentenced in 2021 which is post Muruatetu petition of the Supreme Court whereas the apex court declared unconstitutional the mandatory nature death sentence. However, the death sentence is still a lawful sentence where it is found to be deserving. The accused gave his mitigation. He told the court that he had been in custody for 23 months and that his family had suffered due to his absence. It is on record that the complainant and the appellant knew one another even by name. The complainant gave the full names of the appellant to the investigating officer. There is some alleged intimate relationship between them as intimated by the appellant. The complainant did not dispute it but said in cross examination that the two were not married. This suggests that the two were intimate friends some time before the incident. The value of the properties stolen was Kshs. 7,700/- which is a small amount in the general standards of living. The trial magistrate does not seem to have considered this factor in sentencing though he had the discretion to do so. The accused was a first offender for there were no previous convictions presented to the court by the prosecution. It is my considered view that the trail magistrate failed to take into consideration several important factors in sentencing the appellant. This omission resulted in imposing a harsh and excessive sentence to the offender. It is further noted that he trial court did not take into consideration that the appellant spent one year and nine (9) months in custody pending trial. Section 333(2) of the Criminal Procedure Code provides that such period be considered during sentencing. For this reason, this court is empowered to review the sentence of death meted to the appellant.