15.As the first appellate court, will re-evaluate the evidence adduced at the trial and draw its own conclusions. Except, bearing in mind that the court neither saw nor heard the witnesses firsthand. Thus, demeanor is best observed by the trial court (Okeno vs. Republic  E.A 32).
16.The court has perused and considered the lower court record, the written submissions, and judicial 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
17.According to the Court of Appeal in the case of Oluoch vs. Republic  KLR: -
18.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 a conviction for the offence of robbery with violence (Dima Denge Dima & Others vs Republic, Criminal Appeal No. 300 of 2007)
19.PW1-Ketri Ongachi Olibe testified that he worked at a wines and spirit shop in Masaai Mara Talek. On 19.05.2015, he saw the deceased at wines and spirit shop- where PW1 worked. The deceased drunk liquor and one Nganga bought him beer. The deceased left. PW1 went to their sister bar where he found the deceased drinking. He closed business at 12.30 p.m. The next day he was informed by his friend that the mzee who had drunk at their place was dead.
20.PW3 a police officer with tourist police unit received information that the suspect in the murder of the deceased was seen at Talek trading centre. They moved with a team after receiving a description of how the appellant was dressed. They moved to a bar and identified the appellant from the description of his dressing. They arrested and searched the appellant and recovered two phones a Samsung and Itel. He also had a 500-shilling note and a mutilated 100-shillings note.
21.PW4 PC Jackton Ingolo of DCI Ilmenti testified that on 20.05.2015 he investigated a case of murder of the deceased. He investigated the two mobile phones to ascertain their owners. He found that the IMEI details belong to the Deceased. He produced the Samsung and Itel phones as P Exh 1 and 2. He also produced the currency as P Exh 3 and 4. He swore an affidavit to get a warrant to investigate the phones produced as P Exh 7. The Safaricom gave him the phone number which was confirmed to be the number of the deceased.
22.On cross-examination, he stated that CPL Njoroge prepared an inventory of the recoveries. He was not present when the phones were recovered. The inventory was done in Narok Police station. The inventory was written in English but translation was done for the accused. The money recovered was Kshs. 4,300 and mutilated currency was not indicated in the inventory. The Kshs. 4,300/= was not handed over to him, he does not know if it was returned to the appellant. The kshs. 600/= was suspected to have been stolen from the deceased. The phones were not dusted for finger prints. The phones had no sim cards. Nobody saw the appellant hitting the deceased. The murder weapon was not recovered. PW4 did not inquire from the appellant as to how he got the phones. He claimed to have picked them. He agrees that the evidence against the appellant is circumstantial.
23.PW5 Dr. Titus Ngulungu conducted post mortem on the body of the deceased on 22.05.2015 the body was preserved and fresh. He stated that the deceased must have lacked oxygen before death. There was cyanosis. The right side of the head had a swelling. The neck was bruised and left index finger was also bruised. There was an haematoma on upper chest wall, a blood forced trauma. The hyacid bone above thyroid cartilage was fractured showing a tight grip on the area. There was blockage of arteries around the neck and fluid was retained at the brain. The opinion was that the cause of death was asphyxia-the holding of the throat which stopped oxygen flow to the systems and this is in line with strangulation. The injury to the index finger shows that the deceased could have struggled with the assailant. There were no external wounds. The deceased could have been attacked while lying down.
24.The appellant gave his sworn defence. He stated that on 19.05.2015 he was at Talek trading centre chewing miraa at queens bar. He went there at 6 pam and left at 11 p.m. He stated that he did not see the deceased that night and does not know him. He did not have a disagreement with the deceased. There was no fracas in the bar that night. He contends that nothing was recovered from him. He confirmed that he signed the inventory but was not given a copy. He stated that he was beaten to admit that the phones were his but he never complained of the beatings in court. His finger prints were taken but were not traced on the phones.
25.The evidence against the appellant is circumstantial. Although the appellant denied being with the deceased on the fateful night, the evidence adduced connects him with the offence. The deceased was drinking in the liquor shop and was found dead the following day. See evidence of PW1. The police received information that the suspect was seen at the trading Talak Trading Centre. They were also provided with the description of the clothes the appellant wore the night before. PW3 stated that they embarked on tracing him at Talek trading centre where they found him in a bar. They arrested and searched the appellant and recovered two phones- a Samsung and Itel. The IMEI details provided by Safaricom showed the phones belonged to the deceased.
26.The appellant was found with these phones one day after the deceased was killed and robbed. The appellant claimed that he had found the phones. This was not a plausible explanation as to how he came into possession of the phones. The phones did not have the sim cards when they were retrieved from the appellant. Nothing showed that he had declared or informed anyone of these phones as lost and found items.
27.‘It is… necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’ (Teper v. R (2)  A. C. 480 and Simon Musoke v. R  EA 715)
28.In this case, there is nothing that suggests a coincidence that the appellant was found with the two phones belonging to the deceased one day after his death. The appellant was found with the phones which belonged to the deceased. It bears repeating that the phones did not have sim cards in them when and they were recovered from the appellant. No reasonable explanation was provided by the appellant as to how he came into possession of the phones. His claim that he had found them was merely an afterthought. The circumstantial evidence connects the appellant to the robbery of the deceased. There is no any other possible hypothesis other than that of guilt of the appellant.
29.The medical evidence show that personal violence was used upon the deceased as he died of strangulation of the neck and his index finger was injured. Therefore, the overall impression of the evidence is that the prosecution proved beyond reasonable doubt that the appellant jointly with others not before court robbed the deceased of his property and during the robbery, they used actual violence on the deceased as a result of which he died.
30.Accordingly, the appeal on conviction fails and is dismissed.
31.In the case before me, force and violence were used upon the deceased. The deceased also died. The appellant was found in possession of the two phones belonging to the deceased.
32.The level of violence unleashed on the deceased is sufficiently serious to warrant a death sentence or long period of imprisonment.
33.The Penal Code prescribes death sentence as the maximum sentence for the offence of robbery with violence. The trial court was guided by the Muruatetu decision on the exercise of judicial discretion in cases where mandatory sentence is prescribed. Therefore, sentence of imprisonment imposed herein was properly meted out and appropriate. Accordingly, there is no reason or justification to interfere with the sentence meted upon the Appellant by the trial court.
34.In the upshot, the appeal on conviction and sentence is dismissed for lack of merit. The sentence is upheld.