'1. The Appellant was charged in Eldoret Chief Magistrate’s’ Criminal Case No. 2888 of 2018 on four counts.
2. On Count I, the Appellant was charged with abducting with intent to confine contrary to Section 259 of the Penal Code. The particulars of the offence were that between 8th and 9th July, 2018 near Safaricom House Eldoret Town within Uasin Gishu County, with the intent to cause CCJ to be secretly and wrongfully, confined abducted the said CCJ.
3. On Count II, the Appellant was charged with rape contrary to Section 3(1)(a)(b) and (3) of the Sexual Offences Act. The particulars of the offence were that between 8th and 9th July, 2018 at Kaboi area within Nandi County, he intentionally and unlawfully caused his penis to penetrate the vagina of CCJ without her consent.
4. On Count III, the Appellant was charged with abducting with intent to confine contrary to Section 259 of the Penal Code. The particulars of the offence were that between 8th and 9th July, 2018 near Kimumu, Soy Sub-Cunty within Uasin Gishu County, with intent to cause CC to be secretly and wrongfully, confined abducted the said CC.
5. On Count IV, the Appellant was charged with Rape contrary to Section 3(1)(a)(b) and (3) of the Sexual Offences Act. The particulars of the offence were that between 8th and 9th July, 2018 at Kaboi area within Nandi County, he intentionally and unlawfully caused his penis to penetrate the vagina of CC without her consent.
6. The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called six (6) witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and put him on his defence under Section 210 of the Criminal Procedure Code. The Appellant opted to give a sworn statement and called 7 witnesses.
7. By judgment delivered on 21st December 2022, the Appellant was convicted on Count I and sentenced to serve 3 years’ imprisonment, he was acquitted on Count II, he was convicted on Count III and sentenced to serve 3 years’ imprisonment and convicted on Count IV he sentenced to serve 10 years’ imprisonment. The Court directed that the sentences shall run consecutively.
8. Being dissatisfied with the decision of the trial Court, the Appellant instituted this appeal on 4th of January 2023, against the conviction and sentence on five grounds reproduced verbatim as hereunder;
1) That the learned Magistrate erred in both law and facts by convicting the Appellant in Counts I, III and IV to run consecutively without regarding that the said events were found in the same file and more so Count I and III affected one victim.
2) That the trial Court erred in law and facts by convicting the Appellant, yet failing to hold that the investigation in this instant case was shoddy and shambolic.
3) That the medical interference in this case was not supportive thus tendering the conviction unsafe.
4) That the learned trial Magistrate erred in law and fact by convicting him on flimsy and unreliable witnesses of the prosecution.
5) That the learned trial Magistrate erred in disregarding the Appellant’s plausible defence.
The Evidence
9. PW1 was Ruth Tanui, she testified that she is a nurse by profession. That she is based in Uasin County and is a resident of Kimumu drips road in Eldoret. She testified that she recalls that the 7th July 2018 was a Saturday and that she was at home where she lived with one Christine Jepkoech who is a cousin to her husband and she also had a house girl by name Jepchumba. She testified that in the morning Christine who was a KMTC student told her that she wanted to attend the burial of a fellow student who had lost a parent and she allowed her to go. That she he left at 8.00 am and went to Nandi and that later at 2.00 pm Christine called and told her that she will not be able to come back home on that day but would come the following day.
10. She testified that on Sunday, she read a text message at 7:00 pm, where Christine said that she was at a cyber and she will return home after she was done with browsing. That she waited until 9:00 pm when she called her to no avail. That shortly thereafter she received a phone call from Christine’s sister who resides in Lodwar who asked her about Christine.
11. She testified that the following morning Christine sister called Agnes called her while she was at her place of work and told her that Christine had called her on phone and informed her that she had been locked inside a lodging at Kaiboi in Nandi and that the person who had locked her in the lodging wanted to kill her. That the person who was with her was one Alex who was a driver to Agnes. She added that Alex had passed by their home while on his way to Lodwar and thus he was well known to her.
12. She further testified that she made a report at Eldoret Police Station about the disappearance of Christine and the officers advised her to tell Christine to go and make a report herself. That she went back to work and while at work she received a phone call from a new number 0722868739 and the caller introduced himself as Birgen and he asked her if she knew him but she couldn''t recall who he was. She told the Court that he inquired about Christine''s whereabouts and she stated that she had left on Saturday to attend a burial and by Monday morning she had not returned to the house.
13. She stated that she then tried to call home to know if Christine had arrived home but she was informed that she was yet to arrive. She stated that she also thereafter received a second call form the same person, who inquired about Christine again but she responded in the negative. That he then told her that he wanted to take her to where Christine was. That she asked him who he was and he told her that he is Alexander Birgen the driver of Agnes, Christine''s sister. She testified that she told him that she was at her place of work and gave him directions to the place and after a few minutes he came to the gate of Uasin Gishu Sub- County hospital.
14. That he arrived driving a Prado motor vehicle registration number KBB 673J, grey in colour. She then identified him, and that indeed the vehicle belonged to Agnes. That he showed her two mobile phones and a handbag containing books, which she identified as belonging to Christine. That he asked her to board the vehicle to enable him take her where Christine was. She stated that she declined to board since she did not know where he was taking her and that she told him that she would require a second person to accompany her since Christine had told her that she was with a person who had threatened to kill her and so he left.
15. She told the Court that she waited until 5.00 p.m. and went to the Police Station to make a second report and as she was walking to the station, she received a phone call from her mother-in-law who told her that their house girl had gone missing from the house around 3.30 p.m. and that a neighbour’s house girl stated that she had seen Jepchumba speaking with a man who was driving a grey Prado, outside their gate.
16. She stated that she connected the said vehicle with the one Alexander arrived at her place of work with and stated that Alexander also knew her residence. She told the Court that she then called her husband who had travelled to Nakuru and informed him of what had happened. She testified that the husband then came at around 6:00 pm and he too went to make a report at the Police Station. That as they were at the station she received a phone text message from the same number that Alexander Birgen had used to call her and that the message read as follows;
“ok - huyu ninamchinja sahau yeye". That there was also a second message which read “Jepchumba kwisha......pia namtafuta Christine" and a third message which read “ambia yeye niko nayeye mpaka ni hakikishe she is dead, “ Penye nitampata niapo".
17. She told the Court that as they were in the station, the husband to Agnes arrived at the same time with her husband. She stated that shortly, as it approached 7.00 pm, Christine arrived at the station but house girl was still missing. That Christine explained that she was to return on Sunday when she received a phone call from Alexander who advised her not to board a PSV stating that he will go and pick her up. That they met and the accused asked her to board the vehicle for him to ferry her home and after boarding, the accused took a turn to Nandi and that''s how they got to Kaiboi. She testified that he had picked her at Eldoret town and at Kaiboi, the accused took her to a lodging where he raped her. That the matter was taken up by the DCI and with the assistance of her husband and Agnes'' husband known as Elim they started tracing the accused.
18. She told the Court that the following day, the house girl Jepchumba was traced. That Christine went to RVVTI and pretended to be stranded. That she called the accused and requested him to go and rescue her and the accused dropped the house girl at Mosoriot and then drove to RVVTI to pick Christine and that is how the police officers managed to apprehend him. She testified that they went and got the house girl and that the accused had taken her to Kaiboi forest where the accused raped her and that he told her in during the ordeal that the target was Christine and herself and that the two of them had eaten a lot of his money yet she herself had never gotten a penny from the accused.
19. She testified that the accused and Christine had a relationship and when Christine wanted to get out of it the accused got infuriated. She testified that the manner in which Jepchumba disappeared is that the accused had returned home and asked what her mother-in-law wants to take and she said milk and he said that he had milk in the vehicle that she went to take from the back seat and as she entered to remove the milk, the accused locked the doors and drove off with her. She testified that they went to the DCI and recorded their statement. She told the Court that she does not know how long the accused had worked as a driver for Agnes. She identified the accused as the person before Court.
20. The witness basically reiterated her testimony as already herein summarised in cross examination save to add that she confirmed that she knows the Appellant very well as he used to come to her house while on his way to Lodwar.
21. PW2 Joseph Kiptalam, testified that he is a nurse at MTRH and that PW1is his wife. That on 9th July 2018 was on his way from Nakuru heading to Eldoret when he received a phone call from his wife (PW1) she told who to go to Eldoret Police Station as there was an issue there. His evidence on what transpired before he came to the scene mirrors the evidence of PW1 as already herein summarised and I will therefore not regurgitate the same.
22. He testified that after his wife received the text messages while they were at the CID offices, the CID officers took the number and tracked it to Kaiboi trading centre. That the following day, they went straight to Kaiboi, in the company of Elim who is husband to her cousin in the company of police officers and they stated looking for Christine at the local AP camp where Christine had called his wife the previous day and informed her that she had sought refuge. They found Christine and even as she appeared traumatized she informed them that she was safe. She explained that the hijacker who was the accused wanted to kill her.
23. He told the Court that thereafter they went round the lodges looking for the accused known as Alexander, but they were not able to get him. That they contacted the Chief of Kaiboi in the company of the police officers and he promised he will assist in tracing the accused and they then came back to Eldoret. That the police officer tried to call the accused but his phone was switched off. That upon arrival at Eldoret, the accused called back on the police officer’s number and that the officer told him there was a lady who was trying to reach him. He told Court that they were with Christine who then called Alexander using a different phone number and told him that she was stranded at Langas and Alexander asked her to wait for him he would come for her. They then went and took strategic positions as the officers laid an ambush.
24. He testified that Alexander arrived at the scene while driving motor vehicle make Prado KBB 675J grey in colour. Christine was standing alone. Alexander saw her, stopped and beckoned her to who walk up to the vehicle. It is at this point that the officers struck and arrested the accused. That the witness then interrogated him on the whereabouts of Cynthia, whom he had said that he had killed and the accused said that he had dropped her at his grandmother''s place at Mosoriot. They went to Mosoriot to a home and found Cynthia in the company of her grandmother where the accused had dropped her. He told the Court that Cynthia appeared traumatized and psychologically disturbed, he tried to inquire from her what had happened and Christine stated that the accused had raped her and Cynthia too said that she had been raped by the accused and that she did not have any on under wear.
25. He testified that they then went back to Eldoret Police station from where they were referred to MTRH, where the two girls were examined and treated. That they later recorded their statements on 11th July 2018. That the accused was placed in the cell, the motor vehicle (Prado) was inspected and Christine''s back pack was found in there. There were also knives that were found in the car. That Cynthia told them that the accused had raped her in the forest. That the accused was actually interested in raping and killing his wife, but he missed out on her. He told Court that his wife told him that the accused had once came to his home in the company of his cousin Agnes as they were on their way to Lodwar and they accommodated them and that other that they have no other relationship. That after recoding their statements, they went home but did not find Christine and they thought that something had happened to her, but it emerged that she was alive but Cynthia too run away out of fear for her life. He then identified the accused as the person who was before court.
26. On cross-examination, PW2 reiterated his averments in chief and added that in this case, he did not act in his capacity as a nurse or practitioner but as an aggrieved person and that he is not the one who attended to appellant, who was attended to by a doctor. He stated that he has colleagues at the said hospital but added that Medical officers taken an oath to follow the truth and he had no way of influencing the outcome of the matter.
27. PW3 was Christine Cheboi Jepkoech , she testified that on 8th July 2018 which was a Sunday, she was in Eldoret town when she received a phone call from Alex the accused herein who is her ex-boyfriend. That he told her that he was in Eldoret for official duties and he asked her if she was busy. She told him that she was arriving in town and was intending to go home at Kimumu and he told her that he was headed to that direction and he offered to give her a lift since he was driving.
28. She stated that they agreed to meet at Safaricom office in town and she went there and found him in motor vehicle KBB 673J a grey Toyota Prado. Inside, there was a second male person. He opened the back left door for her and she boarded. She told Court that the other person was in the front seat and he told her that would drop off the male person first which at Tuskys. He then drove back to the highway and took the Kapsabet road. She testified that she immediately raised a concern and she asked him why he had diverted to the wrong route yet she wanted to go to Kimumu and he shouted back at her and asked her to keep quiet, he crossed Sosian river and pulled out a kitchen knife and he told her if she raised an alarm or makes any further comment, he will stab her.
29. She told the Court that after the male person had alighted, he had ordered her to join him at the front seat and she was now occupying the co-driver''s seat. That he then sped off towards the Kapsabet general direction and he was still holding onto the knife. That when they reached Mosoriot he crossed into the direction of Kapket where his home is and he was driving at a very high speed. She told Court that at Kapket they stopped and alighted as she was left inside the vehicle. That shortly thereafter, he came back and drove towards a market centre whose name she couldn’t recall and when he stopped and alighted he left her inside the vehicle. She testified that by this time, the Appellant had snatched her phone from her and that she was unable to communicate with anyone. That after about 30 minutes he come with an old man and an old lady and he asked me to greet them but instructed me not to say anything more and that after greeting them they left and they started our way back towards Kapket.
30. She testified that she was scared by his conduct and on their way they found a vehicle which had broken down and he pulled off his vehicle and went to talk to the men who were attending to the vehicle and he stayed with them for around 45 minutes, while she was still locked in the Prado. They reached Kapket centre where they took a turn to Kaiboi centre and when she inquired where he was taking her he said they will use the Kaiboi road to come to Eldoret. That when they reached Kaiboi, he told her that they are not going anywhere and that his mission was to eliminate her, which she understood that to be a threat to her life. That he then went outside and went round to look for a lodging and that he held her by the hand and pulled her towards one of the rooms in the facility and then he forced her into the room and locked it. She testified that at the time, she did not see any other person, that she did not scream since it wasn''t clear to her what his intensions were and he had also locked the room from outside. After some time, she stated that he came back and begun asking her why she had left him, why she had rejected him and why did she used to ignore his calls and was not responding to his text messages.
31. She testified that he started making sexual advances at her, which she resisted and he did not manage to have sex with her and after she resisted him successfully That he fell asleep but she did not fall asleep. She added that the Appellant slept until 7:00 am when he woke and went outside and she went and locked herself in the room that they had slept in and when it was quiet outside she opened the door and met some men who told her that the accused was seen with the vehicle. She asked them for a phone phone and one of them gave her the phone and she used it to call her sister Agnes Cheboi and to whom narrated her ordeal. She told Court that her sister asked her to report the matter to the nearest Police Post and she went to Kaoboi Police Post and made her report and stayed there until 5 pm.
32. She stated that Officers called her brother in-law Moses Elim and they explained to him her situation, he sent to her bus fare to Eldoret town and the officers took her to the stage where she took a vehicle to Eldoret and on arrival, she went straight to Eldoret Police station, where she met her cousin in-law and her cousin Chesang. That she was interrogated and her report booked after which they went home.
33. The following morning, she stated that the officers started tracing the accused, they went to Kaiboi in the in the company of the officers but they did not trace him and so they came back to Eldoret Police Station and she gave the accused number to a police officer who traced him, telling him that she was in need of help as she was stranded somewhere and the Appellant said he was available. That one of the officers gave her his phone and she used it to call the accused and she told him that she was at Eldoret Polytechnic stranded and the accused told me to wait for him there. She testified that they went with the officers, she stood somewhere near the institution and the Appellant came driving the Prado, he stopped when he saw her and as he was talking to her the officers came in swiftly and arrested him.
34. She told the Court that at the time, a house girl to her cousin had also gone missing and when the Appellant was interrogated about her whereabouts he explained that he had dropped her at his grandmother''s place at Mosoriot. That they went to Mosoriot and they found the girl by the name Chepchumba at her grandmother''s place in Mosoriot. That she was traumatized and complained of pain, however, she was stable but dull. She was interrogated by the police and she stated that she had been subjected to sexual abuse by the accused. She was referred to MTRH, just like herself and the Appellant.
35. She stated that the three of them were examined by the Medical Officers at the Hospital and given the appropriate treatment and thereafter that the Appellant was placed in the cells. She stated that she had been examined to confirm if the accused had sexually assaulted her. That during the incident, they had struggled with the accused and he almost penetrated her vagina with his penis, that he had touched the surface of her vagina but she managed to resist him, that he had made an attempt to and he had removed her clothes as he struggled with her. She told the Court that Chepchumba said that the Appellant had managed to penetrate a vaginal opening. She then identified the Appellant as the one before Court.
36. On cross-examination, she stated that the Appellant used to be her boyfriend, but at the time but they had parted ways. She stated that he was her sister''s driver and she had no reason to ignore his call. She told the Court that the vehicle he was driving belonged to her sister Agnes. She stated that he was meant to take her home. That when she entered into the vehicle he pulled out a kitchen knife that was stationed next to the door of the vehicle and he locked her inside the vehicle and she was not able to get out. She stated that she has used the vehicle as a passenger not as a driver but did not know how the central locking system of the vehicle works. She stated that the accused had taken her two phones and that he had threatened her with the knife and that he said that his intention was to eliminate her.
37. She stated that she had not recovered since she was in the accused’s custody and that she got help from some two young men who gave her a phone to call her sister and that they also took her to Kaiboi Police Post where she explained everything to the officers and they took steps to help her. She stated that main investigations into this matter was done at Eldoret Police Station, and that bus fare to Eldoret was sent to her by her brother in-law. She told the Court that the police officer escorted her up to the stage where she took a vehicle to Eldoret and she met the rest of the team at Eldoret. She stated that at the cyber she was doing her college work but she could not recall the date. She told the Court that much of her research work was done at the said cyber.
38. She stated that the accused made a frantic effort to forcefully have sexual intercourse with her, but she managed to resist him. She told the Court that the accused had brought his penis into contact with her vagina. She stated that she is the one who gave the officers the accused’s mobile number and that they had Planned to trick him so that they could arrest him.
39. PW4 was Dr. Michael Kabigen, he testified that he is a medical officer based at MTRH and that he holds a Bachelor Degree in Medicine and Surgery form Egerton University, class of 2018, and that he is based at the Directorate of Reproductive Health and that he worked with Dr. Temet who had filled the P# Form and who was away on study leave for six months and is therefore conversant with his signature and handwriting.
40. He testified that he has a P3 form for a patient know as CJ, who at the time of examination was aged 20 years old and that the medical officer’s Reference No. is 0734463. He stated that clothing was not produced for examination. That the patient explained that she has been abducted by a male person from her place of work, who drove her to Kaiboi forest where he raped her under the same vehicle on 9th July 2018 from 6pm till the following day. That at 11 am the next day, he then drove her to Kapngelion Nandi county, to her sister''s place. He told the Court that upon examining her on 10th July 2018 at 6pm, he found that the head and neck were normal and that on the thorax and abdomen, there were lacerations on mid chest and back, lacerations on the medial aspect of the thigh and groin areas
41. He further testified that on general examination, there was erythema labia minor and posterior fourchette and hymenal lacerations, there was whitish PV discharge, HIV was negative, HVS there were red blood cells, pus cell per high per fill (HPF), few multi bacteria, moderate epithelial cells, VDRL was negative, DVT was negative, urinalysis-3 pus leucocytes, test of blood-31 which was elected and 21 respectively consistent with rape. That the offence took place on 8th July 7018 and that a blunt object had been used. That the P3 form was signed by Dr. Temet on 13th July 2018. He stamped with the official stamp. He then produced the P3 form as evidence.
42. On cross-examination PW4 stated that as per the P3 form it is only the victim who was examined and that he did not have any evidence if the assailant was also examined. He reiterated that there was whitish discharge from the vaginal opening that showed that she had an infection. He stated that several tests were done and that HVS disclosed that there was bacterial infection, urinalysis too disclosed the presence of an infection. He told the Court that infection in ladies come as a result of having a sexual intercourse with a man and he stated that it is not a must that a man must have a positive finding just like a lady.
43. He stated that tenderness indicates that there is pain and that there was tenderness on palpation. He told the Court that they also take the history of a patient as they treat them and those medical officers are based in the job are able to detect the injuries. He stated that rape means that there was no consent and that on the thighs and the labia minora there were positive marks indicating the of use of force and the groin also had injuries and there was positive evidence of rape on the patient and that the patient was given treatment to prevent syphilis, hepatitis and gonorrhoea.
44. He told the Court that is very normal for patients to get treatment and that the treatment is captured in the treatment notes. He stated that trauma to patients depends from one person to another. He stated that the patient was able to articulate her case. He told the court that the clothes which the patient was wearing at the time of the incident were not presented to the doctor. He clarified that the date of the incident was 9th July 2018 and that the P3 form was filed on 13th July 2018.
45. PW5 was CC she testified that she is a housewife at the moment and that previously she was a house girl at the homestead of Joseph Chesang at Kimumu in Eldoret. She recalled that on 8th July 2018 at around 2 pm she was in the house and a man came and found her with the lady who was with in the house. He told her that he had delivered some items which she was to collect from the vehicle which he had been sent with by her boss and so she went outside with him. He told her to enter into the vehicle and she obliged. That the vehicle which was a Prado. She stated that after she entered, he locked the door of the vehicle and speed off. She was surprised by his actions and asked him what was happening and he ordered her to remain silent and he speed off up to Mosoriot where he stopped.
46. She told the Court that she had tried to open the door of the vehicle in vain and that at Mosoriot he alighted and locked her inside the vehicle and she unable to get out. She stated that when he returned he drove the vehicle to Kaboi forest and when he stopped the vehicle she asked him what was happening and he told her that she was not even his target, that he wanted her boss Mama K and that his other target was a lady who was also staying in the same house who was a college student. She told the Court that he said the girl had eaten a lot of his money and that he wanted to get even with them.
47. She further testified that he then exited from the vehicle and walked around it.That time was now around 6.30 pm and they were in the forest. She stated that while there she asked him what was his intentions were and he asked her to remove her clothes which she declined since he was stranger to her and that is when he brandished a knife which he had kept in a bag and he said he will kill her by stubbing her with the knife. She stated that she feared for her life and pleaded with him not to kill her. She told the Court that the knife was a kitchen knife (shown knife). She then identified the knife and told the Court that it had broken wooden handle. The same was then produced in evidence as MFI-2. She testified that when she noted that he was serious, she had no option but to give in to his forceful demand. That the accused then removed his clothes and forced his erected penis into her vagina. That he forced himself on her and that after the first round he paused and told her that he had sent a message to her boss that he had killed her. That he again had sex with her and he continued that way until morning and that he was raping her inside the vehicle.
48. She testified that in the morning, he drove the vehicle up to a river and he ordered her to clean the vehicle and when she saw a lady pass by and she made
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2. On Count I, the Appellant was charged with abducting with intent to confine contrary to Section 259 of the Penal Code. The particulars of the offence were that between 8th and 9th July, 2018 near Safaricom House Eldoret Town within Uasin Gishu County, with the intent to cause CCJ to be secretly and wrongfully, confined abducted the said CCJ.
3. On Count II, the Appellant was charged with rape contrary to Section 3(1)(a)(b) and (3) of the Sexual Offences Act. The particulars of the offence were that between 8th and 9th July, 2018 at Kaboi area within Nandi County, he intentionally and unlawfully caused his penis to penetrate the vagina of CCJ without her consent.
4. On Count III, the Appellant was charged with abducting with intent to confine contrary to Section 259 of the Penal Code. The particulars of the offence were that between 8th and 9th July, 2018 near Kimumu, Soy Sub-Cunty within Uasin Gishu County, with intent to cause CC to be secretly and wrongfully, confined abducted the said CC.
5. On Count IV, the Appellant was charged with Rape contrary to Section 3(1)(a)(b) and (3) of the Sexual Offences Act. The particulars of the offence were that between 8th and 9th July, 2018 at Kaboi area within Nandi County, he intentionally and unlawfully caused his penis to penetrate the vagina of CC without her consent.
6. The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called six (6) witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and put him on his defence under Section 210 of the Criminal Procedure Code. The Appellant opted to give a sworn statement and called 7 witnesses.
7. By judgment delivered on 21st December 2022, the Appellant was convicted on Count I and sentenced to serve 3 years’ imprisonment, he was acquitted on Count II, he was convicted on Count III and sentenced to serve 3 years’ imprisonment and convicted on Count IV he sentenced to serve 10 years’ imprisonment. The Court directed that the sentences shall run consecutively.
8. Being dissatisfied with the decision of the trial Court, the Appellant instituted this appeal on 4th of January 2023, against the conviction and sentence on five grounds reproduced verbatim as hereunder;
1) That the learned Magistrate erred in both law and facts by convicting the Appellant in Counts I, III and IV to run consecutively without regarding that the said events were found in the same file and more so Count I and III affected one victim.
2) That the trial Court erred in law and facts by convicting the Appellant, yet failing to hold that the investigation in this instant case was shoddy and shambolic.
3) That the medical interference in this case was not supportive thus tendering the conviction unsafe.
4) That the learned trial Magistrate erred in law and fact by convicting him on flimsy and unreliable witnesses of the prosecution.
5) That the learned trial Magistrate erred in disregarding the Appellant’s plausible defence.
The Evidence
9. PW1 was Ruth Tanui, she testified that she is a nurse by profession. That she is based in Uasin County and is a resident of Kimumu drips road in Eldoret. She testified that she recalls that the 7th July 2018 was a Saturday and that she was at home where she lived with one Christine Jepkoech who is a cousin to her husband and she also had a house girl by name Jepchumba. She testified that in the morning Christine who was a KMTC student told her that she wanted to attend the burial of a fellow student who had lost a parent and she allowed her to go. That she he left at 8.00 am and went to Nandi and that later at 2.00 pm Christine called and told her that she will not be able to come back home on that day but would come the following day.
10. She testified that on Sunday, she read a text message at 7:00 pm, where Christine said that she was at a cyber and she will return home after she was done with browsing. That she waited until 9:00 pm when she called her to no avail. That shortly thereafter she received a phone call from Christine’s sister who resides in Lodwar who asked her about Christine.
11. She testified that the following morning Christine sister called Agnes called her while she was at her place of work and told her that Christine had called her on phone and informed her that she had been locked inside a lodging at Kaiboi in Nandi and that the person who had locked her in the lodging wanted to kill her. That the person who was with her was one Alex who was a driver to Agnes. She added that Alex had passed by their home while on his way to Lodwar and thus he was well known to her.
12. She further testified that she made a report at Eldoret Police Station about the disappearance of Christine and the officers advised her to tell Christine to go and make a report herself. That she went back to work and while at work she received a phone call from a new number 0722868739 and the caller introduced himself as Birgen and he asked her if she knew him but she couldn''t recall who he was. She told the Court that he inquired about Christine''s whereabouts and she stated that she had left on Saturday to attend a burial and by Monday morning she had not returned to the house.
13. She stated that she then tried to call home to know if Christine had arrived home but she was informed that she was yet to arrive. She stated that she also thereafter received a second call form the same person, who inquired about Christine again but she responded in the negative. That he then told her that he wanted to take her to where Christine was. That she asked him who he was and he told her that he is Alexander Birgen the driver of Agnes, Christine''s sister. She testified that she told him that she was at her place of work and gave him directions to the place and after a few minutes he came to the gate of Uasin Gishu Sub- County hospital.
14. That he arrived driving a Prado motor vehicle registration number KBB 673J, grey in colour. She then identified him, and that indeed the vehicle belonged to Agnes. That he showed her two mobile phones and a handbag containing books, which she identified as belonging to Christine. That he asked her to board the vehicle to enable him take her where Christine was. She stated that she declined to board since she did not know where he was taking her and that she told him that she would require a second person to accompany her since Christine had told her that she was with a person who had threatened to kill her and so he left.
15. She told the Court that she waited until 5.00 p.m. and went to the Police Station to make a second report and as she was walking to the station, she received a phone call from her mother-in-law who told her that their house girl had gone missing from the house around 3.30 p.m. and that a neighbour’s house girl stated that she had seen Jepchumba speaking with a man who was driving a grey Prado, outside their gate.
16. She stated that she connected the said vehicle with the one Alexander arrived at her place of work with and stated that Alexander also knew her residence. She told the Court that she then called her husband who had travelled to Nakuru and informed him of what had happened. She testified that the husband then came at around 6:00 pm and he too went to make a report at the Police Station. That as they were at the station she received a phone text message from the same number that Alexander Birgen had used to call her and that the message read as follows;
“ok - huyu ninamchinja sahau yeye". That there was also a second message which read “Jepchumba kwisha......pia namtafuta Christine" and a third message which read “ambia yeye niko nayeye mpaka ni hakikishe she is dead, “ Penye nitampata niapo".
17. She told the Court that as they were in the station, the husband to Agnes arrived at the same time with her husband. She stated that shortly, as it approached 7.00 pm, Christine arrived at the station but house girl was still missing. That Christine explained that she was to return on Sunday when she received a phone call from Alexander who advised her not to board a PSV stating that he will go and pick her up. That they met and the accused asked her to board the vehicle for him to ferry her home and after boarding, the accused took a turn to Nandi and that''s how they got to Kaiboi. She testified that he had picked her at Eldoret town and at Kaiboi, the accused took her to a lodging where he raped her. That the matter was taken up by the DCI and with the assistance of her husband and Agnes'' husband known as Elim they started tracing the accused.
18. She told the Court that the following day, the house girl Jepchumba was traced. That Christine went to RVVTI and pretended to be stranded. That she called the accused and requested him to go and rescue her and the accused dropped the house girl at Mosoriot and then drove to RVVTI to pick Christine and that is how the police officers managed to apprehend him. She testified that they went and got the house girl and that the accused had taken her to Kaiboi forest where the accused raped her and that he told her in during the ordeal that the target was Christine and herself and that the two of them had eaten a lot of his money yet she herself had never gotten a penny from the accused.
19. She testified that the accused and Christine had a relationship and when Christine wanted to get out of it the accused got infuriated. She testified that the manner in which Jepchumba disappeared is that the accused had returned home and asked what her mother-in-law wants to take and she said milk and he said that he had milk in the vehicle that she went to take from the back seat and as she entered to remove the milk, the accused locked the doors and drove off with her. She testified that they went to the DCI and recorded their statement. She told the Court that she does not know how long the accused had worked as a driver for Agnes. She identified the accused as the person before Court.
20. The witness basically reiterated her testimony as already herein summarised in cross examination save to add that she confirmed that she knows the Appellant very well as he used to come to her house while on his way to Lodwar.
21. PW2 Joseph Kiptalam, testified that he is a nurse at MTRH and that PW1is his wife. That on 9th July 2018 was on his way from Nakuru heading to Eldoret when he received a phone call from his wife (PW1) she told who to go to Eldoret Police Station as there was an issue there. His evidence on what transpired before he came to the scene mirrors the evidence of PW1 as already herein summarised and I will therefore not regurgitate the same.
22. He testified that after his wife received the text messages while they were at the CID offices, the CID officers took the number and tracked it to Kaiboi trading centre. That the following day, they went straight to Kaiboi, in the company of Elim who is husband to her cousin in the company of police officers and they stated looking for Christine at the local AP camp where Christine had called his wife the previous day and informed her that she had sought refuge. They found Christine and even as she appeared traumatized she informed them that she was safe. She explained that the hijacker who was the accused wanted to kill her.
23. He told the Court that thereafter they went round the lodges looking for the accused known as Alexander, but they were not able to get him. That they contacted the Chief of Kaiboi in the company of the police officers and he promised he will assist in tracing the accused and they then came back to Eldoret. That the police officer tried to call the accused but his phone was switched off. That upon arrival at Eldoret, the accused called back on the police officer’s number and that the officer told him there was a lady who was trying to reach him. He told Court that they were with Christine who then called Alexander using a different phone number and told him that she was stranded at Langas and Alexander asked her to wait for him he would come for her. They then went and took strategic positions as the officers laid an ambush.
24. He testified that Alexander arrived at the scene while driving motor vehicle make Prado KBB 675J grey in colour. Christine was standing alone. Alexander saw her, stopped and beckoned her to who walk up to the vehicle. It is at this point that the officers struck and arrested the accused. That the witness then interrogated him on the whereabouts of Cynthia, whom he had said that he had killed and the accused said that he had dropped her at his grandmother''s place at Mosoriot. They went to Mosoriot to a home and found Cynthia in the company of her grandmother where the accused had dropped her. He told the Court that Cynthia appeared traumatized and psychologically disturbed, he tried to inquire from her what had happened and Christine stated that the accused had raped her and Cynthia too said that she had been raped by the accused and that she did not have any on under wear.
25. He testified that they then went back to Eldoret Police station from where they were referred to MTRH, where the two girls were examined and treated. That they later recorded their statements on 11th July 2018. That the accused was placed in the cell, the motor vehicle (Prado) was inspected and Christine''s back pack was found in there. There were also knives that were found in the car. That Cynthia told them that the accused had raped her in the forest. That the accused was actually interested in raping and killing his wife, but he missed out on her. He told Court that his wife told him that the accused had once came to his home in the company of his cousin Agnes as they were on their way to Lodwar and they accommodated them and that other that they have no other relationship. That after recoding their statements, they went home but did not find Christine and they thought that something had happened to her, but it emerged that she was alive but Cynthia too run away out of fear for her life. He then identified the accused as the person who was before court.
26. On cross-examination, PW2 reiterated his averments in chief and added that in this case, he did not act in his capacity as a nurse or practitioner but as an aggrieved person and that he is not the one who attended to appellant, who was attended to by a doctor. He stated that he has colleagues at the said hospital but added that Medical officers taken an oath to follow the truth and he had no way of influencing the outcome of the matter.
27. PW3 was Christine Cheboi Jepkoech , she testified that on 8th July 2018 which was a Sunday, she was in Eldoret town when she received a phone call from Alex the accused herein who is her ex-boyfriend. That he told her that he was in Eldoret for official duties and he asked her if she was busy. She told him that she was arriving in town and was intending to go home at Kimumu and he told her that he was headed to that direction and he offered to give her a lift since he was driving.
28. She stated that they agreed to meet at Safaricom office in town and she went there and found him in motor vehicle KBB 673J a grey Toyota Prado. Inside, there was a second male person. He opened the back left door for her and she boarded. She told Court that the other person was in the front seat and he told her that would drop off the male person first which at Tuskys. He then drove back to the highway and took the Kapsabet road. She testified that she immediately raised a concern and she asked him why he had diverted to the wrong route yet she wanted to go to Kimumu and he shouted back at her and asked her to keep quiet, he crossed Sosian river and pulled out a kitchen knife and he told her if she raised an alarm or makes any further comment, he will stab her.
29. She told the Court that after the male person had alighted, he had ordered her to join him at the front seat and she was now occupying the co-driver''s seat. That he then sped off towards the Kapsabet general direction and he was still holding onto the knife. That when they reached Mosoriot he crossed into the direction of Kapket where his home is and he was driving at a very high speed. She told Court that at Kapket they stopped and alighted as she was left inside the vehicle. That shortly thereafter, he came back and drove towards a market centre whose name she couldn’t recall and when he stopped and alighted he left her inside the vehicle. She testified that by this time, the Appellant had snatched her phone from her and that she was unable to communicate with anyone. That after about 30 minutes he come with an old man and an old lady and he asked me to greet them but instructed me not to say anything more and that after greeting them they left and they started our way back towards Kapket.
30. She testified that she was scared by his conduct and on their way they found a vehicle which had broken down and he pulled off his vehicle and went to talk to the men who were attending to the vehicle and he stayed with them for around 45 minutes, while she was still locked in the Prado. They reached Kapket centre where they took a turn to Kaiboi centre and when she inquired where he was taking her he said they will use the Kaiboi road to come to Eldoret. That when they reached Kaiboi, he told her that they are not going anywhere and that his mission was to eliminate her, which she understood that to be a threat to her life. That he then went outside and went round to look for a lodging and that he held her by the hand and pulled her towards one of the rooms in the facility and then he forced her into the room and locked it. She testified that at the time, she did not see any other person, that she did not scream since it wasn''t clear to her what his intensions were and he had also locked the room from outside. After some time, she stated that he came back and begun asking her why she had left him, why she had rejected him and why did she used to ignore his calls and was not responding to his text messages.
31. She testified that he started making sexual advances at her, which she resisted and he did not manage to have sex with her and after she resisted him successfully That he fell asleep but she did not fall asleep. She added that the Appellant slept until 7:00 am when he woke and went outside and she went and locked herself in the room that they had slept in and when it was quiet outside she opened the door and met some men who told her that the accused was seen with the vehicle. She asked them for a phone phone and one of them gave her the phone and she used it to call her sister Agnes Cheboi and to whom narrated her ordeal. She told Court that her sister asked her to report the matter to the nearest Police Post and she went to Kaoboi Police Post and made her report and stayed there until 5 pm.
32. She stated that Officers called her brother in-law Moses Elim and they explained to him her situation, he sent to her bus fare to Eldoret town and the officers took her to the stage where she took a vehicle to Eldoret and on arrival, she went straight to Eldoret Police station, where she met her cousin in-law and her cousin Chesang. That she was interrogated and her report booked after which they went home.
33. The following morning, she stated that the officers started tracing the accused, they went to Kaiboi in the in the company of the officers but they did not trace him and so they came back to Eldoret Police Station and she gave the accused number to a police officer who traced him, telling him that she was in need of help as she was stranded somewhere and the Appellant said he was available. That one of the officers gave her his phone and she used it to call the accused and she told him that she was at Eldoret Polytechnic stranded and the accused told me to wait for him there. She testified that they went with the officers, she stood somewhere near the institution and the Appellant came driving the Prado, he stopped when he saw her and as he was talking to her the officers came in swiftly and arrested him.
34. She told the Court that at the time, a house girl to her cousin had also gone missing and when the Appellant was interrogated about her whereabouts he explained that he had dropped her at his grandmother''s place at Mosoriot. That they went to Mosoriot and they found the girl by the name Chepchumba at her grandmother''s place in Mosoriot. That she was traumatized and complained of pain, however, she was stable but dull. She was interrogated by the police and she stated that she had been subjected to sexual abuse by the accused. She was referred to MTRH, just like herself and the Appellant.
35. She stated that the three of them were examined by the Medical Officers at the Hospital and given the appropriate treatment and thereafter that the Appellant was placed in the cells. She stated that she had been examined to confirm if the accused had sexually assaulted her. That during the incident, they had struggled with the accused and he almost penetrated her vagina with his penis, that he had touched the surface of her vagina but she managed to resist him, that he had made an attempt to and he had removed her clothes as he struggled with her. She told the Court that Chepchumba said that the Appellant had managed to penetrate a vaginal opening. She then identified the Appellant as the one before Court.
36. On cross-examination, she stated that the Appellant used to be her boyfriend, but at the time but they had parted ways. She stated that he was her sister''s driver and she had no reason to ignore his call. She told the Court that the vehicle he was driving belonged to her sister Agnes. She stated that he was meant to take her home. That when she entered into the vehicle he pulled out a kitchen knife that was stationed next to the door of the vehicle and he locked her inside the vehicle and she was not able to get out. She stated that she has used the vehicle as a passenger not as a driver but did not know how the central locking system of the vehicle works. She stated that the accused had taken her two phones and that he had threatened her with the knife and that he said that his intention was to eliminate her.
37. She stated that she had not recovered since she was in the accused’s custody and that she got help from some two young men who gave her a phone to call her sister and that they also took her to Kaiboi Police Post where she explained everything to the officers and they took steps to help her. She stated that main investigations into this matter was done at Eldoret Police Station, and that bus fare to Eldoret was sent to her by her brother in-law. She told the Court that the police officer escorted her up to the stage where she took a vehicle to Eldoret and she met the rest of the team at Eldoret. She stated that at the cyber she was doing her college work but she could not recall the date. She told the Court that much of her research work was done at the said cyber.
38. She stated that the accused made a frantic effort to forcefully have sexual intercourse with her, but she managed to resist him. She told the Court that the accused had brought his penis into contact with her vagina. She stated that she is the one who gave the officers the accused’s mobile number and that they had Planned to trick him so that they could arrest him.
39. PW4 was Dr. Michael Kabigen, he testified that he is a medical officer based at MTRH and that he holds a Bachelor Degree in Medicine and Surgery form Egerton University, class of 2018, and that he is based at the Directorate of Reproductive Health and that he worked with Dr. Temet who had filled the P# Form and who was away on study leave for six months and is therefore conversant with his signature and handwriting.
40. He testified that he has a P3 form for a patient know as CJ, who at the time of examination was aged 20 years old and that the medical officer’s Reference No. is 0734463. He stated that clothing was not produced for examination. That the patient explained that she has been abducted by a male person from her place of work, who drove her to Kaiboi forest where he raped her under the same vehicle on 9th July 2018 from 6pm till the following day. That at 11 am the next day, he then drove her to Kapngelion Nandi county, to her sister''s place. He told the Court that upon examining her on 10th July 2018 at 6pm, he found that the head and neck were normal and that on the thorax and abdomen, there were lacerations on mid chest and back, lacerations on the medial aspect of the thigh and groin areas
41. He further testified that on general examination, there was erythema labia minor and posterior fourchette and hymenal lacerations, there was whitish PV discharge, HIV was negative, HVS there were red blood cells, pus cell per high per fill (HPF), few multi bacteria, moderate epithelial cells, VDRL was negative, DVT was negative, urinalysis-3 pus leucocytes, test of blood-31 which was elected and 21 respectively consistent with rape. That the offence took place on 8th July 7018 and that a blunt object had been used. That the P3 form was signed by Dr. Temet on 13th July 2018. He stamped with the official stamp. He then produced the P3 form as evidence.
42. On cross-examination PW4 stated that as per the P3 form it is only the victim who was examined and that he did not have any evidence if the assailant was also examined. He reiterated that there was whitish discharge from the vaginal opening that showed that she had an infection. He stated that several tests were done and that HVS disclosed that there was bacterial infection, urinalysis too disclosed the presence of an infection. He told the Court that infection in ladies come as a result of having a sexual intercourse with a man and he stated that it is not a must that a man must have a positive finding just like a lady.
43. He stated that tenderness indicates that there is pain and that there was tenderness on palpation. He told the Court that they also take the history of a patient as they treat them and those medical officers are based in the job are able to detect the injuries. He stated that rape means that there was no consent and that on the thighs and the labia minora there were positive marks indicating the of use of force and the groin also had injuries and there was positive evidence of rape on the patient and that the patient was given treatment to prevent syphilis, hepatitis and gonorrhoea.
44. He told the Court that is very normal for patients to get treatment and that the treatment is captured in the treatment notes. He stated that trauma to patients depends from one person to another. He stated that the patient was able to articulate her case. He told the court that the clothes which the patient was wearing at the time of the incident were not presented to the doctor. He clarified that the date of the incident was 9th July 2018 and that the P3 form was filed on 13th July 2018.
45. PW5 was CC she testified that she is a housewife at the moment and that previously she was a house girl at the homestead of Joseph Chesang at Kimumu in Eldoret. She recalled that on 8th July 2018 at around 2 pm she was in the house and a man came and found her with the lady who was with in the house. He told her that he had delivered some items which she was to collect from the vehicle which he had been sent with by her boss and so she went outside with him. He told her to enter into the vehicle and she obliged. That the vehicle which was a Prado. She stated that after she entered, he locked the door of the vehicle and speed off. She was surprised by his actions and asked him what was happening and he ordered her to remain silent and he speed off up to Mosoriot where he stopped.
46. She told the Court that she had tried to open the door of the vehicle in vain and that at Mosoriot he alighted and locked her inside the vehicle and she unable to get out. She stated that when he returned he drove the vehicle to Kaboi forest and when he stopped the vehicle she asked him what was happening and he told her that she was not even his target, that he wanted her boss Mama K and that his other target was a lady who was also staying in the same house who was a college student. She told the Court that he said the girl had eaten a lot of his money and that he wanted to get even with them.
47. She further testified that he then exited from the vehicle and walked around it.That time was now around 6.30 pm and they were in the forest. She stated that while there she asked him what was his intentions were and he asked her to remove her clothes which she declined since he was stranger to her and that is when he brandished a knife which he had kept in a bag and he said he will kill her by stubbing her with the knife. She stated that she feared for her life and pleaded with him not to kill her. She told the Court that the knife was a kitchen knife (shown knife). She then identified the knife and told the Court that it had broken wooden handle. The same was then produced in evidence as MFI-2. She testified that when she noted that he was serious, she had no option but to give in to his forceful demand. That the accused then removed his clothes and forced his erected penis into her vagina. That he forced himself on her and that after the first round he paused and told her that he had sent a message to her boss that he had killed her. That he again had sex with her and he continued that way until morning and that he was raping her inside the vehicle.
48. She testified that in the morning, he drove the vehicle up to a river and he ordered her to clean the vehicle and when she saw a lady pass by and she made
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