Benjamin v Republic (Criminal Appeal 182 of 2017) [2025] KECA 2134 (KLR) (28 November 2025) (Judgment)

Benjamin v Republic (Criminal Appeal 182 of 2017) [2025] KECA 2134 (KLR) (28 November 2025) (Judgment) Neutral citation: [2025] KECA 2134 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 182 of 2017 S ole Kantai, JW Lessit & A Ali-Aroni, JJA November 28, 2025 Between Charles Ngo'rwa Benjamin Appellant and Republic Respondent (An appeal from the conviction and sentence of the High Court of Kenya at Nanyuki (Kasango, J.) dated 8th November 2017 in HCCRA No. 110 of 2016 [Criminal Appeal 110 & 111 of 2016](http://kenyalaw.org/caselaw/cases/view/143729/) ) Judgment 1.The appellant Charles Ngo’rwa Benjamin and another (not before the Court) were charged before the Chief Magistrate’s Court in Nanyuki, with two counts of robbery with violence, contrary to Section 296(2) of the Penal Code. The particulars of the 1st count were that, on 4th December 2015 at Daki Bar Timau Township, Buuri District in Meru County, jointly with others not before the court, being armed with dangerous weapons, namely a knife and a metal object, they robbed Aron Kinoti of 72 bottles of assorted spirits and beer valued at Kshs. 6,500, the property of Caroline Makena and at the time of such robbery, used actual violence against the said Aron Kinoti. 2.The particulars of the 2nd count were that, on 4th December 2015 at Daki Bar Timau Township, Buuri District in Meru County within the Republic of Kenya, jointly with others not before the court, being armed with dangerous weapons, namely a knife and a metal object, robbed James Mugambi's property, namely 72 bottles of assorted spirit beer valued at Kshs. 6,500, the property of Caroline Makena and at the time of such robbery, used actual violence against the said James Mugambi. 3.The appellant and his co-accused pleaded not guilty to both counts, and the matter proceeded to trial, where the prosecution called five witnesses. At the close of the prosecution's case, they were found to have a case to answer and were placed on their defence. Upon considering the evidence, the trial magistrate convicted the appellant and his co-accused and sentenced them to death. The appellant was dissatisfied with the verdict and appealed to the High Court, which dismissed the appeal and affirmed the conviction and sentence. 4.The appellant, aggrieved by the High Court's decision, preferred this appeal. Although the respondent conceded to the appeal, we shall briefly consider the facts of the case to satisfy ourselves that the appeal is merited. 5.PW1 and PW3 alleged that the bar where they were employed was broken into by several persons on the 4th of December 2015 at about 2:0 am. PW1 & PW3, who stayed next to the bar, heard commotion inside the bar. The two went out, and they both saw and identified the appellant, who was standing between 8 and 10 meters away from the bar. They claimed to have recognised him as he was their customer with the assistance of a security light. They also claimed that the appellant’s black jacket was found at the scene of the crime. They further stated that at the time of reporting the incident to the police, they had given the appellant’s nickname “Sikwekwe” as the person they saw outside the bar. The appellant’s co-accused was arrested on the spot; the appellant was said to have fled upon being seen. 6.PW5, PC Dickson Mugambi, the investigating officer, testified that on 4th December 2015 at 2:30 am, he was at the office when the appellant’s co-accused was brought by members of the public, and PW1 and PW3, who were the complainants. He referred the injured complainant to the hospital. The appellant’s co-accused was locked in the police cell. The complainants reported that they had arrested the co-accused during a robbery at Daki Bar, while others escaped. The OCS ordered the co- accused, who the public had injured, to be taken to Timau Dispensary for treatment. 7.In his defence, the appellant gave a sworn statement and informed the court that he was arrested outside the bar and wasn’t informed of the charges until the following day. He denied the offence and claimed he was framed, asserting that on the night of 4th December 2016, he slept in his house. Further, he denied knowing his co-accused. He rejected the name "Sikwekwe" and challenged the fact that it was not included in the initial report. Furthermore, he denied owning the black leather jacket that was recovered at the scene of the crime. 8.Based on the above facts, the trial magistrate found the appellant and his co-accused guilty as charged. They were sentenced to death on the 1st count, and the sentence in count two was held in abeyance. 9.Aggrieved by the conviction and sentence, the appellant and his co-accused lodged separate appeals that were consolidated and heard by M. Kasango, J. In the judgment dated 8th November 2017, the Judge upheld both the conviction and sentence, thus precipitating this second appeal. 10.In his undated grounds of appeal, the appellant faulted the Judge for concluding that PW1, PW2 and PW3 positively identified him at the scene of the crime; by failing to differentiate between robbery under section 295 and 296(2) of the Penal Code; by failing to consider that the appellant was not assigned a counsel both at trial and on first appeal, which violated his right to a fair trial, thus violating Article 50(1)(2)(h) of [the Constitution](/akn/ke/act/2010/constitution); by upholding the decision of the trial court which rejected the appellant's defence, even though the prosecution did not adequately displace it. 11.At the hearing of the appeal, learned counsel Mr. Henry Kimani appeared for the appellant, while learned prosecuting counsel Mr. Solomon Naulikha appeared for the respondent. Neither party filed submissions. Mr. Kimani informed the Court that the appellant’s co-accused, Moses Mbaya, Appeal No. 183 of 2017, was heard and the appeal allowed on the 29th of September 2024. On his part, Mr. Naulikha conceded to the appeal. 12.Having duly considered the record and the appellant’s grounds of appeal, we start by reminding ourselves of the Court’s mandate, which is restricted to addressing only matters of law as provided in Section 361 of the Criminal Procedure Code. Furthermore, this Court will not usually interfere with concurrent findings of fact by the two courts below unless such findings are not based on evidence, are based on a misapprehension of the evidence, or the courts below acted on incorrect principles in making the findings. (see Karingo vs. Republic [1982] KECA 23 (KLR)). 13.The appellant’s grounds may be summed up into two: identification and, secondly, lack of representation. On representation, the appellant did not raise the issue either at the hearing or on the first appeal. Since the issue of representation does not arise from the first appeal, we shall not dwell on the same, as it is not properly before us. See Manyeso vs. Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment). 14.On identification, the appellant took issue with the identification and disputed the name by which he was being referred to, “Sikwekwe” and also questioned why the O.B. referred to at trial was not produced to support the fact that he was described at the time of reporting. We considered the record of appeal and agree with the defence that the issue of identification of the robbers, and in particular the appellant, left a lot to be desired. The appellant is said to have been standing outside the bar. He was identified by a light that was not far from where he was.PW1 stated that he found him standing outside the bar about 7 meters away and that at the scene of the crime, a black jacket he believed belonged to the appellant was found. Indeed, as submitted, the O.B. giving the name of the appellant was not presented to the Court. Further, there was no particular description or mark on the black jacket to categorically link it to the appellant. Similarly, PW3 stated that he identified the appellant who was 10 meters away from him. He also casually connected the black jacket found at the scene to the appellant. He did not specifically describe the jacket. The two witnesses did not tell the strength of the light emitted by the security light, which enabled them to identify the appellant, nor how long they had observed the said person. As PW1 and PW2 stated that they knew the appellant as their customer, their identification is classified as that of recognition. In Wamunga vs. R [1989] KLR 424, this Court stated:“It is trite law that 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”.Similarly, the Court in Simiyu & Another vs. R [2005] 1 KLR 192 at 195 stated; -“If PW1 and PW3 recognized the appellants as their immediate neighbours then why did they not give their names to the police soon after the attack upon them? In every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given first of all by person or persons who gave the description and purport to identify the accused and then by the person or person to whom the description was given (See R– v- Kabogo s/o Wagunyu 23 (1) KLR 50). The omission on the part of the complainants to mention their attackers to the police goes to show that the complainants were not sure of the attacker’s identity. The failure by the superior court to consider this aspect of the evidence shows that the superior court dealt with the evidence in a perfunctory manner. There was no exhaustive appraisal of the evidence tending to connect each appellant with the commission of the offences to see whether their respective convictions were safe…. Though the prosecution case against the appellants was presented as one of recognition or visual identification, it is manifest that the quality of identification by the witnesses was not good and gives rise to a danger of mistaken identification…. In the circumstances, we have no doubt that the appellants’ convictions are both unsafe and unsatisfactory”. 15.As for the black jacket found at the scene, it is not possible without any other description for the court to be persuaded that it belonged to the appellant; this will amount to mere speculation. 16.In our analysis, we find that the prosecution's case raises doubt on whether the appellant’s identification was proper. We find, therefore, that the evidence placed before the trial court was not safe to found a conviction. In the circumstances, the appeal succeeds. 17.We quash the conviction and set aside the sentence. The appellant is, as a consequence, set at liberty unless otherwise lawfully held. **DATED AND DELIVERED AT NYERI THIS 28****TH** **DAY OF NOVEMBER, 2025.****S. OLE KANTAI****..........................................****JUDGE OF APPEAL****J. LESIIT****..........................................****JUDGE OF APPEAL****ALI-ARONI****.........................................****JUDGE OF APPEAL** I certify that this is a true copy of the original.Signed**DEPUTY REGISTRAR**