Wanzala v Republic [2025] KEHC 7515 (KLR)

Wanzala v Republic (Criminal Appeal E102 of 2024) [2025] KEHC 7515 (KLR) (3 June 2025) (Judgment)

Neutral citation: [2025] KEHC 7515 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal E102 of 2024

DR Kavedza, J

June 3, 2025

Between

Benjamin Wesonga Wanzala

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. A. Mwangi (C.M) at Kibera Chief Magistrate’s Court Criminal No. 1543 of 2022 Republic vs Benjamin Wesonga Wanzala)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to serve twenty-five (25) years imprisonment.

2. Aggrieved, the appellant filed the present appeal challenging his conviction and sentence. In the petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He complained that the sentence imposed was harsh and excessive. He urged the court to quash his conviction and set aside the sentence imposed.

3. This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32).

4. The prosecution called eight witnesses. PW1, the Country Director of Child Refugee Centre International (CRCI), testified that he received a call from the organisation's accountant informing him of a robbery at the CRCI premises along Joseph Kang'ethe Road. He was told that one of the security guards, Peter Odago, had been tied up and was only rescued after an alarm was raised. Upon arrival, he found the police already present. CCTV footage from a neighbouring property showed that the night guard had fled. He listed stolen items including laptops, a projector, and a safe containing Kshs. 314,000, and personal effects. Most items were donated, so receipts were unavailable. He had personally bought the safe and produced its invoice. He stated he could not identify the suspects from CCTV and first saw the appellant in court.

5. PW2, Peter Odago, testified that he was a guard and caretaker at CRCI. On 11th October 2021 at around 10:00 pm, the appellant, whom he had known for about six months, called asking for water, claiming illness. As PW2 went to hand him the water container, four other men emerged and followed the appellant in. One had a gun. PW2 was tied, stripped naked, and dragged to the washroom where he was tortured. He was blindfolded with a curtain but could partially see. The attackers, including the appellant, demanded car keys and valuables. One urinated in his mouth, another injured his back and used pliers on his eyelids. He eventually lost consciousness and was later rescued by a neighbour. He was treated at Mbagathi Hospital and IRCI Medical Centre. He recognised the appellant by voice and sight and stated they knew each other well. He identified him in court.

6. PW3, a Woodley Court resident and then chairperson, testified that around 5:00 am he heard hooting and cries for help. He found the estate gate unmanned and followed the noise to house number 13. Inside the downstairs bathroom, he found the complainant tied and injured. He pressed the estate panic button, and BM Security responded. An ambulance was called. He viewed CCTV footage showing unknown persons at house 13’s gate, a motorbike entering and leaving with equipment, and guards changing clothes and leaving. He recognised the appellant by face but could not recall his name. He confirmed the complainant told him the attackers were night guards.

7. PW4, a police officer, conducted an identification parade on 2nd October 2022. The appellant voluntarily selected his position and declined legal representation. The complainant positively identified him. The form was signed by both parties. The officer could not confirm whether other participants were bald like the appellant.

8. PW5, another security guard, stated he handed over his shift to the appellant and another guard, Rogers, on 10th October. The next morning, he returned and found the estate in disarray. He learned a robbery had occurred, and his uniform was missing. He had worked with the appellant for under three months.

9. PW6, a police officer, testified that on 2nd September 2022, he arrested the appellant at Makuyu Apartments in Kilimani, where he was working for Beyond Security. The arrest was peaceful, and nothing was recovered.

10. PW7, a clinical officer, produced the P3 form for the complainant, confirming injuries consistent with blunt-force trauma. He confirmed treatment at Mbagathi Hospital and based his findings on those records and IRCI Medical Centre notes.

11. PW8, the investigating officer, confirmed that the appellant went into hiding after the incident. Using national ID tracking, he was arrested. CCTV footage supported the complainant’s account. An invoice for the stolen safe was recovered. He stated that two other suspects remained at large and that most of the stolen items had no receipts, having been donated. The appellant and complainant were known to each other. The complainant had sought treatment before the appellant's arrest.

12. In his defence, the appellant testified that on 30th September 2022, he was arrested at work by DCI officers from Kilimani Police Station and taken there. On 4th October 2022, he was arraigned and charged with robbery with violence, which he denied planning or committing. He admitted being arrested a year after the incident and not presenting himself to the police during that time. He said he sustained injuries but had no treatment notes and was unaware he needed a P3 form. He worked at Woodley Court for two months before the robbery and had no conflict with the complainant, whom he said falsely testified against him. He was unsure how the four men entered the estate, did not know where the complainant was held, and stated his uniform was taken after he was searched.

13. The appeal was canvassed by way of written submissions by the parties which have been duly considered. In counts, I and II the appellant was convicted of the offence of robbery with violence. The key ingredients for a robbery with violence charge are found in section 296(2) of the Penal Code. It provides as follows-“if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death”.

14. The first ingredient,there was theft. PW1 testified that several items including laptops, a projector, and a safe containing Kshs. 314,000, and personal effects were stolen from the CRCI premises. The safe's purchase invoice was produced, confirming its ownership and the value of the stolen property.

15. Secondly, the appellant was identified as one of the perpetrators. PW2, the complainant, and the security guard recognised the appellant by voice and sight during the attack. PW3, a neighbour and estate chairperson, also identified the appellant from CCTV footage as being present at the scene. Further, during an identification parade, the complainant positively identified the appellant, as confirmed by PW4.

16. Thirdly, violence or threats of violence were used to facilitate the robbery. PW2 was tied up, stripped naked, tortured, and subjected to degrading treatment while the robbers demanded car keys and valuables. PW7, a clinical officer, confirmed injuries consistent with blunt force trauma, supported by a P3 form and hospital records.

17. Lastly, the appellant’s presence and conduct showed intent and participation. PW8, the investigating officer, confirmed the appellant went into hiding after the incident and was arrested based on tracking. The appellant’s denial during trial does not negate the evidence linking him to the violent robbery. In addition, the appellant’s defence did not rebut the prosecution’s case.

18. The prosecution evidence, taken as a whole, disclosed the offence of robbery with violence as defined under section 296(2) and demonstrated the appellant’s active participation in the incident. The appellant’s conviction was therefore proper and is affirmed.

19. The appellant was sentenced to twenty-five (25) years imprisonment. During sentencing, the court considered the appellant's mitigation, the pre-sentence report, and that he was a first offender. The trial court exercised discretion and I see no reason to interfere.

20. In the premises, the appeal is found to be lacking and is found to be lacking in merit and is dismissed in its entirety.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 3RDDAY OF JUNE 2025. D. KAVEDZAJUDGEIn the presence of:Appellant PresentMutuma for the RespondentTonny Court Assistant.