The High Court in Eldoret has reduced the death sentences
imposed on two men convicted of a violent robbery in 2017.
Justice Reuben Nyakundi ruled that the punishment handed
down six years ago was “punitive, harsh and excessive” given the circumstances
of the offence.
Delivering judgment on September 8, 2025, Nyakundi substituted the
death penalty imposed on David Murunga and Stephen Sifuna Wamalwa
with a determinate custodial sentence of 12 years, backdated to November 15,
2017, when the two were first remanded.
The robbery at Turbo
The case dates back to April 14, 2017, when
complainant Philip Wakhwaka was attacked around 10 pm at Turbo stage in
Tapsagoi, Uasin Gishu County.
Wakhwaka told the trial court that while waiting to hire a
motorcycle, three young men approached, assaulted him and forcefully took Sh4,500
from his trouser pocket.
He said he relied on nearby street lighting to identify his
attackers.
“I saw the men clearly. They pushed me to the ground and
beat me before taking my money,” he testified.
Following the assault, Wakhwaka sought treatment at Turbo
Sub-County Hospital.
A clinician attached to the facility later testified that
the complainant had suffered injuries to the head, upper and lower limbs.
The harm was classified as “soft tissue injuries” in a P3
medical form admitted in court.
Eyewitness account
A key prosecution witness was a watchman at Zebra Hotel.
On the night of the robbery, he told the trial court he was
on patrol when he heard distress screams.
“I saw three people wrestling Wakhwaka to the ground,” he
testified, adding that he recognised two of the men from his three years of
interaction with them at Zebra Hotel.
According to him, the street lights provided sufficient illumination for recognition.
He later identified Murunga and Wamalwa in court
as among the attackers.
The investigating officer, Sergeant Lilian Ruto,
recorded statements from the complainant and witnesses before recommending
charges of robbery with violence under Section 296(2) of the Penal Code.
Arrest and trial
The first appellant, Murunga, told the trial court he was
arrested on the night of the robbery.
He said police, accompanied by the watchman, knocked on his
door around 1 am and accused him of committing the offence.
He denied the allegations.
Similarly, Wamalwa, the second appellant, denied any
involvement, saying only that police came to his house and arrested him.
Both men gave unsworn statements in their defence.
On November 20, 2019, a trial magistrate convicted
both men of robbery with violence and sentenced them to death — the maximum
penalty under the Penal Code.
The appeal
Aggrieved by the decision, Murunga and Wamalwa filed an
appeal challenging the trial court’s findings.
They argued that their conviction was based on suspicion and
speculation, that the evidence was hearsay, and that the conditions for
identification were not conducive.
They further claimed that Section 296(2) of the Penal Code
contradicts constitutional provisions on the right to life and fair trial.
The appellants relied on several authorities, including past
cases, all of which caution courts on the dangers of relying solely on
identification evidence.
Court’s analysis
In reviewing the appeal, Justice Nyakundi emphasised that
the prosecution bears the burden of proof beyond a reasonable doubt.
Citing a precedent case, he noted that silence or a weak
defence cannot relieve the State of its duty to prove guilt.
The judge acknowledged the well-established caution around
visual identification. Quoting from a precedent case, he noted: “Identification
is notoriously uncertain. It depends upon so many variables... the vagaries of
human perception and recollection; and the tendency of the mind to respond to
suggestions.”
However, he found that the watchman’s recognition evidence
was credible.
The watchman had known the appellants for years and
identified them not just by sight but also by their alias names.
The court ruled out mistaken identity.
“The prima facie case established by the prosecution from
the four witnesses remained unchallenged by the defence throughout the trial,”
Justice Nyakundi held.
Sentencing debate
While upholding the conviction, the judge reconsidered the
sentence.
He observed that although the offence was serious, the
injuries sustained by the complainant were soft tissue in nature, and the
weapon used was a rungu.
“In the instant appeal, the trial magistrate imposed the
maximum sentence... even though elements of diminishing culpability were
present,” the judge said.
“One cannot escape describing it as punitive, harsh and
excessive based on the surrounding circumstances of this case.”
Drawing from the doctrine of proportionality, he substituted
the death sentence with a 12-year custodial term.
He credited the period already spent in custody, directing
that the sentence run from November 2017.
Final orders
In his closing remarks, Justice Nyakundi affirmed that while
robbery with violence is a grave offence, sentencing must balance deterrence
with fairness.
“Courts must ensure that sentences not only fall within
the perimeter of proportionality but also reflect the gravity of the crime and
the culpability of the accused persons,” he stated.
The decision means Murunga and Wamalwa will serve about four
more years in prison before completing their terms, unless otherwise released
earlier by remission.
