Luwile & 3 others v Republic (Criminal Appeal E013 of 2025) [2026] KEHC 856 (KLR) (27 January 2026) (Judgment)
Neutral citation:
[2026] KEHC 856 (KLR)
Republic of Kenya
Criminal Appeal E013 of 2025
AC Bett, J
January 27, 2026
Between
Chome Luwile
1st Appellant
Patrick Mbakaya
2nd Appellant
Morris Mbakaya
3rd Appellant
Tony Shirisia
4th Appellant
and
Republic
Respondent
(Being an appeal from the Judgement by Hon. A. A. Odawo (PM) in Kakamega CMCRC No. 3522 of 2019 delivered on 20th January 2025)
Judgment
Background
1.The Appellants were jointly charged with the offence of robbery with violence contrary to section 296 (2) of the Penal code.
2.The particulars of the offence were that on the 23rd day of October 2019 at Shikhungula Village in Buyangu Sub-Location, Kambiri location, Kakamega East Sub-County, within Kakamega County, they jointly with others not before court robbed Peter Makongo one mobile phone, make Nokia valued at Ksh. 16, 000/=, one jacket valued at Ksh. 500/=, one torch valued at Ksh. 300/=, and assorted prescribed drugs all valued at Ksh. 16,800/= and immediately before the time of such robbery, they used actual violence upon and wounded the said Peter Makongo.
3.The Appellants denied the charges, and after a hearing during which the prosecution called seven witnesses, the Appellants were convicted of the said offence and sentenced to twenty (20) years imprisonment each.
4.The Appellants were aggrieved by the conviction and sentence, and lodged this appeal in which they set out the following grounds of appeal;
1.That the trial court erred in law and in fact in not weighing the conflicting prosecution evidence that were inconsequential to the conviction.
2.That the trial court erred in law and in fact in its analysis of the case hence arriving at a wrong decision.
3.That the trial court erred in law and in fact by not finding that there was no evidence produced at all to prove theft as an ingredient of the charge of robbery with violence.
4.That the learned trial court erred in law and in fact in failing to evaluate the entire defence on record holding their defence to be a total sham, falsehood and an attempt to try and mislead the court from the facts.
5.The prosecution’s case was that on 23rd October 2019, the Complainant was on his way to his house from the hospital, when he met the four Appellants herein, together with two others who were not in court, on the road leading to his house. That they stopped him, and demanded that he tells them where his brother Alphonse was. He explained to them that Alphonse had been arrested for beating him. He then tried to pass, but the Appellants held him, and beat him all over his body. He said that they stole from him the items listed in the particulars of the charge.
Appellants’ Submissions
6.The appeal proceeded by way of written submissions. The Appellants argued that the learned trial magistrate erred both legally and factually in convicting them of robbery with violence, in that the prosecution had failed to prove the essential ingredients of the offence.
7.The Appellants submitted that the prosecution failed to prove the key ingredients of robbery with violence as set out in Joseph Kaberia Kahinga & 11 others v. Attorney General [2016] eKLR. They argued that no robbery occurred, as the Complainant merely stated that his phone was “taken” to call an officer and failed to produce receipts for the alleged stolen items.
8.Citing Shadrack Karanja v. Republic [2006] eKLR, they maintained that the violence reported was unrelated to theft, and the prosecution’s evidence pointed to an assault linked to accusations of incest and not a robbery thus failing to establish both actus reus and mens rea.
9.The Appellants contended that the magistrate misdirected herself in concluding that the Complainant was robbed of a flashlight, medication, and a jacket. They submitted that there was no corroborating evidence that these items ever existed or were stolen.
10.They submitted that PW3, who claimed to be an eyewitness, did not mention any robbery, and PW2, while stating he received a distress call, did not speak of any theft.
11.It was argued that the trial court wrongly inferred that violence was connected to robbery, whereas the record demonstrated that any violence meted out arose from communal outrage over alleged incest, as confirmed by the testimony of the investigating officer and other witnesses.
12.They argued that the Magistrate overlooked the contradictions and instead discredited the Appellants' defence unjustifiably.
13.The Appellants pointed to serious contradictions in the prosecution’s narrative. PW1 alleged he was robbed, while PW2 and PW3, purported eyewitnesses, only described an assault. PW3 claimed the Complainant was chased while shouting for help, yet PW1 never testified to being chased or calling out.
14.To bolster their argument, the Appellants submitted that PW2 said he received a call from PW1, but PW1 only mentioned calling an officer, not PW2.
15.Additionally, when PW1 was stood down to provide receipts for the stolen items, he failed to produce any upon recall and instead claimed even the receipts were stolen, a narrative the Appellants argued was tailored to patch up evidentiary gaps.
16.These contradictions, the Appellants argued, were material and prejudiced their right to a fair trial, especially since they were convicted of robbery with violence. In contrast, the trial evidence overwhelmingly pointed to an assault case.
17.The Appellants prayed that the Court should guard against misuse of the criminal justice system to settle personal vendettas. They submitted that the charges of robbery were trumped up to remove them from the community following accusations of incest involving the Complainant and PW3.
18.They contended that the prosecution’s evidence failed to support the serious charge preferred, and the trial court erred in both law and fact by upholding a conviction that was not borne out by the evidence.
Respondent’s Submissions
19.The Respondent submitted that although the evidence failed to support a conviction for robbery with violence, the record established a clear case of assault. The injuries sustained by the Complainant were well documented through the production of a medical booklet, P3 Form and treatment notes. This evidence was not challenged or controverted by the defence.
20.They submitted that the Complainant identified the Appellants as his attackers. His account was corroborated by PW2 and PW3, both of whom witnessed the incident. The assault took place in broad daylight, and the Appellants were clearly identified.
21.The Respondent conceded that there were material contradictions in the evidence regarding the theft of the phone. The Complainant’s testimony on the number and ownership of the phones was inconsistent and uncorroborated. PW7 confirmed that the Complainant could not identify who took what during the alleged robbery and that no phone was recovered.
22.However, the Respondent maintained that these inconsistencies only affected the charge of robbery, and that the evidence of assault remained consistent, credible, and unshaken.
23.The Respondent urged the court to apply section 179 of the Criminal Procedure Code, allowing conviction for a lesser or cognate offence where the evidence does not support the original charge. Citing Choge v Republic [2024] KEHC 3029 (KLR) and Robert Mutungi Mumbi v Republic [2015] eKLR, the Respondent argued that a conviction for assault causing actual bodily harm under section 251 of the Penal Code was justified.
24.To clarify the concept of a cognate offence, the Respondent made reference to Black’s Law Dictionary, 7th Edition, which defines it as a lesser offence sharing elements with the principal charge. The prosecution submitted that the offence of robbery with violence had not been proved and prayed that it be substituted with assault, and that a pre-sentence report be ordered before sentencing.
Analysis and Determination
25.This is a first appeal, and the duty of the court is to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent findings and conclusion while bearing in mind that it did not have the privilege of seeing or hearing the witnesses as they testified. See Okeno v. Republic [1972] EA 74 and Ajode v. Republic [2004] KLR 81.
26.For the offence of robbery with violence contrary to Section 296 (2) of the Penal Code to be proven, the Prosecution must prove the following ingredients:-a.That the offender(s) stole something from the Complainant.b.That the offender was armed with a dangerous or offensive weapon.c.That the offender was accompanied by one or more persons.
27.In Joseph Kaberia Kahinga & 11 others v. Attorney General [2016] KEHC 3275 (KLR), the court set out the said ingredient and stated thus:-
28.The Appellants submitted that the evidence adduced before the trial court did not prove any case of robbery or robbery with violence. They asserted that there was no evidence adduced that items set out in the Charge Sheet viz, a Nokia phone, jacket, torch and assorted drugs were robbed from the Complainant.
29.The Respondent, rightly conceded the Appellants’ contention that there was no proof of robbery. It was the Complainant’s case that the 1st Appellant took his ‘Itel’ phone and told him to call the police officer who arrested Alphonce. There was no evidence that the Complainant had another phone on him which was taken by the Appellants. The Complainant did not avail any evidence to prove his claim that he had a Nokia phone or indeed any of the items alleged to have been stolen by the Appellants on the material date. The Complainant’s evidence was not corroborated either by the eyewitnesses, or by the police to whom the complaint was made. It was PW5’s evidence that “there was a report that people had assaulted the Complainant”. This was corroborated by PW6 who testified that on 25th November 2019, they were instructed to arrest the persons who had “beat up Peter”. There was no mention of robbery in the events that led to the arrest of the Appellants.
30.Notably, the Investigating Officer stated that he had received a report that someone was being detained by villagers at Shikungu Area over an allegation of incest whereby he proceeded to the scene of incident as the officers from Lubao Police Post had been overpowered. There, they rescued the man who had allegedly committed incest. The man had been assaulted. It is therefore not clear how a case of assault mutated into a robbery with violence case. It is evident that the elements of robbery under Section 296 (2) of the Penal Code were not proven and the conviction for robbery was therefore in error.
31.Notwithstanding the aforesaid, the Respondent urged the court to find that the prosecution was able to prove that the Appellants assaulted the Complainant.
32.The charge of robbery with violence imputes the threat or use of violence on the victim. The use of the violence on a person ordinarily results in harm to body of the person. Consequently, the offence of assault is a cognate offence to the offence of robbery with violence.
33.The evidence before the trial court was that the Appellants jointly assaulted the Complainant. The Complainant identified the Appellants and testified that they accosted him on 23rd October 2019, threatened to kill him, and started beating him with blows and kicks all over his body whereby he sustained injuries for which he was treated at Shinyalu Model Hospital the next day.
34.The Complainant’s evidence was corroborated by PW2 who said that on the material date, on receiving a call from the Complainant that he had been attacked at his home, he proceeded to the scene where he found a group of about 50 people at the scene. The 1st Appellant was holding a rope which had been used to tie the Complainant. The 3rd Accused was interrogating the Complainant while the 4th Accused and one Chackton were beating him. When cross examined by the 2nd Appellant, PW2 stated that he found the 2nd Appellant at the scene amongst the people beating the Complainant and that he saw the 2nd Appellant assault the Complainant and even pleaded with him to stop the assault.
35.PW3 also corroborated the Complainant’s claim of assault by testifying that on 14th October 2019, while at home, she heard the Complainant screaming for help and rushed to the scene. On arrival, she found a group of people chasing after the fleeing Appellant then tethering him. She testified that they were beating him because he had engaged in an incestuous relationship with his child. PW3 said that she recognised the four Appellants who chased the Complainant and beat him. She said that she saw the 1st Appellant hit the Complainant with sticks and saw the 2nd, 3rd and 4th Appellants beat and tie him with a rope.
36.The assault resulted in injuries for which the Complainant was treated and later issued with a P3 form. This evidence was adduced by PW4, a Clinical Officer who testified that the Complainant was initially treated at Shinyalu Model Health Centre before being transferred to Kakamega General County Hospital. He produced as P.Exh. 1, a treatment Book from the Health Centre which indicates that the Complainant, Peter Makonga Amwayi presented himself with a complaint of having been assaulted by persons well known to him who attacked him with logs of wood, punches on the face and kicks after which they tied him with a rope on a tree. On examination, the Complainant was found to have a swollen right shoulder, multiple deep cut wounds on the head, swollen and painful lower legs, painful chest and back. A diagnosis of multiple body injuries secondary to assault was reached and a recommendation of admission and chest X-ray made.
37.The P3, which was produced as PEx.2 was issued on 24th October 2019. The examining Clinician confirmed that the Complainant had suffered the injuries as set out in the treatment book and assessed the degree of injury as harm.
38.Regarding the submissions that the prosecution’s case was full of contradictions and inconsistencies, I have carefully reviewed the evidence and noted some inconsistencies. The Appellants submit that PW3 contradicted PW1’s testimony by stating that the assailants were chasing after him and shouting “tunakupiga kwas sababu ulienda na mtoto wako” and that PW1 was running, saying “woi, munisaidie, nimeuwawa” whereas PW1 never stated that he was chased or that he shouted for help.
39.It is trite that no two people’s recollections of events can be the same. Therefore, it is only material contradictions that would vitiate the prosecution’s case. The apparent inconsistencies and contradictions in the prosecution case, including the failure by PW1 to state that he called PW2 to go and help him are inconsistencies that are ordinarily expected in witnesses. The common ground is that the Appellants were seen assaulting the Complainant. Ordinarily, a person does not stand still in the face of a threat of assault. He would naturally attempt to flee and to call for help. The fact that the Complainant did not testify that he attempted to flee and shouted for help does not render his evidence unreliable. Regarding the phone call to PW2, it was the Complainant’s evidence that a phone was handed over to him to call the police officer who had arrested Alphonse. He therefore had the means to call PW2. It may have skipped his mind to inform the court that he called PW2.
40.In MTG v. Republic [2022] KEHC 189 (KLR) the court considered the effect of contradictions in a trial and stated as follows:-
41.I have considered the Appellant’s submissions and made a thorough evaluation of the evidence tendered. It is my conclusion that the contradictions and inconsistencies are not so material as to be fatal to the entire prosecution’s case.
42.In their defence, the 1st, 2nd and 3rd Appellants alleged that they were not present during the offence. In effect, they were raising a defence of alibi. It is worth noting that none of them adduced any evidence to prove their alibi amid the overwhelming evidence adduced by the prosecution. As for the 4th Appellant, his was a mere denial which did not dislodge the prosecution’s case. There was ample evidence that the Appellants did jointly assault the Complainant. The evidence was consistent, credible and well corroborated.
43.The Respondent urges the court to find that it has the power to convert the offence that the Appellants were charged with from robbery with violence to that of common assault by invoking Section 179 of the Criminal Procedure Code and relies on the case of Andrew Kipsigei Choge v. Republic [2024] KEHC 3029 (KLR) where Mrima J. was faced with a case whose facts are similar to the instant case and where he found that the offence of robbery with violence had not been proven. In considering the concept of cognate offences, the court observed as follows:-
44.The court went ahead to quote the case of Robert Mutungi Muumbi v. Republic [2015] KECA 584 (KLR) where the Court of Appeal rendered itself concerning cognate offences as follows:-
45.From the foregoing, it is patently clear that the appellate court has the same power as the trial court to convict a person charged with a major offence with a minor offence provided the minor offence is cognate or related to the major offence.
46.Section 179 of the Criminal Procedure Code provides that:-
47.Flowing from the above analysis, the court finds that whereas the prosecution was not able to prove the offence of robbery with violence against the Appellants, there was sufficient evidence to prove beyond reasonable doubt, that the four Appellants did assault the Complainant thereby causing him actual bodily harm.
48.Section 251 of the Penal Code states as follows:-
49.The upshot is that the appeal partially succeeds. The conviction and sentence for robbery with violence contrary to Section 296 (2) of the Penal Code is set aside. In its stead, the four Appellants are each convicted of assault contrary to Section 251 of the Penal Code.
50.Before calling upon the parties to mitigate, the court calls for a pre-sentence report to be filed within 30 days.
51.Orders accordingly.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 27TH DAY OF JANUARY 2026.A. C. BETTJUDGEIn the presence of:Mr. Nechesa Maina for the AppellantsMs. Chala for the RespondentCourt Assistant: Polycap