1. This is an appeal from the conviction and sentence of Hon. M.M. Gituma (SRM) in Nyeri CMCR No. E037 of 2022 delivered on 25.01.2024 and sentence given on 07.03.2024 and sentence given on 20.05.2024. The appellant was charged with 5 counts. He had been arrested on 28.09.2022.
2. The first count was attempted rape contrary to Section 4 of the Sexual Offences Act. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri County, he intentionally attempted to commit an act of penetration of the penis into the vagina of TNG
3. The second count was committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri County, he unlawfully and intentionally sucked the breast of TNG
4. The third count was sexual assault contrary to Section 5(1)(a) (i) as read with Section 5(2) of the Sexual Offences Act. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri County, he unlawfully penetrated the vagina of TNG with his fingers.
5. The fourth count was robbery with violence contrary to section 296(2) of the Penal Code. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri, he robbed TNG Ksh 1,000 from her M-Pesa account and a Tecno Spark 8P phone valued Ksh. 16,000/= and immediately before the time of the said robbery threatened to use personal violence against TNG.
6. The appellant was arrested on 28.09.2022 and taken to court on 29.09.2022. He pleaded not guilty to all 4 counts. The court directed that the Appellant be provided with legal representation. However, there were no bond proceedings on record. Upon hearing the witnesses, the court acquitted the appellant of count 1, attempted rape. He was convicted on count 2, committing an indecent act, count 3, sexual assault, and count 4, robbery with violence.
7. The appellant was sentenced as follows:
a. Count 1 – acquitted
b. Count 2 - 4 years
c. Count 2 - 15 years
d. Robbery with violence - 50 years
e. The sentences were to run concurrently from the date of remand.
8. The appellant filed an appeal and set forth the following grounds of appeal:
COPY
9. The following supplementary grounds were filed:
COPY
10. The PW1 was Daniel Hamisi of Safaricom department of law enforcement liaison officer, Safaricom headquarters. He was assigned TO investigate an account through a warrant dated 4.1.2022. It was Misc. Application No. 141 of 2022. He prepared a report dated 10.11.2022; it was for an account of Brian Waithegani. The statement relates to 30.4.2022 and 4.05.2022. He prepared a certificate dated 1.02.2022. he was not cross-examined.
11. PW2, TNG, testified that she was a student. She stated that she met a lady known as TEE, who promised to help her secure a promotion job with Supreme. On the material day, TEE informed her that she would not be able to accompany her and instead told her that a person called Ray would pick her up and take her to Gatitu for an interview.PW2 testified that Ray later called her and asked her to go to Beavers, which she did. Upon meeting him, Ray informed her that TEE was in Chaka and that they would have to wait for her before leaving. They engaged in casual conversation before proceeding to Ikulu in Skuta, where they were allegedly to wait for TEE.
12. According to PW2, the appellant insisted that she order a drink while they waited. She complied and paid for the drinks herself. Ray informed her that TEE had requested that they meet at a certain roundabout before proceeding to Gatitu. However, they took a different route. Along the way, they encountered people smoking cannabis by the roadside. At that point, PW2 began to suspect that there was no job interview as promised, particularly when they reached the end of the road. PW2 testified that they eventually arrived at a bushy area. She started questioning Ray about their destination and the promised interview. In response, Ray slapped her
13. PW2 testified that after slapping her, the appellant threw away her bag, lifted her dress, and removed her brassiere. He then demanded that she “please him as a man.” She stated that, out of fear, she complied with his demands. According to her testimony, the appellant instructed her to satisfy men without engaging in sexual intercourse. He made her stand up and, after removing her brassiere, touched and sucked her breasts.
14. PW2 further testified that she was compelled to stimulate the appellant’s penis. She stated that the appellant threatened her, telling her that he could rape her and dispose of her body without anyone knowing. She testified that she feared for her safety and therefore complied with his demands. PW2 also stated that the appellant inquired whether she had any money and later sent money to her. She explained that the mobile phone number used for the transaction was registered in the name of her aunt.
15. PW2 further testified that the appellant demanded that she hand over her mobile phone. Before surrendering it, she removed the password from the device. Thereafter, they parted ways. She stated that she later obtained the services of a motorcycle rider, who informed her of the appellant's name. PW2 further testified that the person who sucked her breasts also inserted his fingers into her vagina. She described the appellant as being very aggressive. She continued that the appellant told her that both his father and mother had died. She further testified that he spat on her during the ordeal.
16. On cross-examination, PW2 testified that she identified the appellant at the police station. However, she stated there was no identification parade report. Her evidence was that she was able to recognise the appellant's face and that she also saw him during police interrogation. She maintained that the person who had introduced himself as “Ray” was the appellant seated before the court. PW2 further testified that she paid for the drinks they partook of at Skuta. She testified that she was not familiar with the area. She stated that TEE had previously sent her photographs relating to the purported job opportunity, but she did not provide those photographs to the court or the investigating authorities.
17. She testified that she could not remember the name of the boda boda rider who assisted her after the incident. PW2 further stated that she did not scream or raise an alarm during the ordeal. However, she provided the police with the rider’s telephone number and the phone number associated with the incident. PW2 also testified that the boda boda rider threatened to throw her into a river. The relevance of this last statement is unclear.
18. She stated that she told the court that the phone was stolen. She did not show the text message or produce evidence to show that the Tecno phone existed. She was stood down, and later her phone was not going through.
19. PW2 was later recalled, sworn, and testified in Kiswahili. She stated that her aunt, Miriam Wangari, was not a witness in the case. She further testified that the boda boda rider also accompanied her to the police station, although she did not know whether he recorded a statement with the police.
20. PW2 stated that she informed two people about the incident. She admitted that she had consumed alcohol on the material day but maintained that she was not intoxicated. She further testified that she sent money to the appellant. However, she stated that she did not know the real name of TEE. PW2 maintained that the incident had indeed occurred and insisted that she was telling the truth.
21. On re-examination, PW2 stated that she identified the appellant when she saw him at the police station. She explained that she followed the person known as Ray because he had informed her that TEE was on her way. She further testified that she attempted to contact her parents but was unsuccessful.
22. PW2 stated that she began sensing danger while at the club when TEE failed to answer her phone calls. She stated that the money she sent to the appellant was not related to any job opportunity. Rather, she sent it because Brian had threatened her.
23. PW 3 was William Muriuki who testified that he is a doctor at Nyeri County Referral Hospital. He had a bachelor’s degree in medicine and surgery. She reported that she was sexually assaulted; she stated that she had an old broken hymen and there were no external injuries. The PRC was filled. The patient had not attended any medical facility before. There were no bodily injuries, and he reported that a person inserted fingers in her vagina and threatened to kill her.
24. PW4, Police Constable Newton Mwangi of Nyeri Police Station, testified that he was the investigating officer in the matter. He stated that the complainant reported a robbery with violence on 4.05.2022. According to the report, the appellant demanded Ksh. 1,000 from the complainant, which she subsequently sent. The money was transmitted via mobile number 07115527352. Investigations revealed that the number was registered in the name of Miriam Wangari, although further inquiries linked its use to the appellant.
25. PW3 testified that he obtained warrants to investigate the appellant’s M-Pesa account. He also visited the scene of the alleged offence, which was a riparian area. According to the complainant’s account, this was the location where the appellant threatened to throw her into the river before robbing her of her mobile phone. The officer further testified that the complainant initially reported the matter at Ruringu Police Station on 02.05.2022 but was dissatisfied with the response she received there. She thereafter proceeded to Nyeri Central Police Station, where the complaint was formally recorded, and investigations commenced.
26. PW3 stated that investigations established that the appellant had allegedly slapped the complainant, inserted his fingers into her vagina, forced her to perform oral sex on him, and sucked her breasts. He further testified that the appellant and the complainant had been communicating prior to meeting and eventually met at a bar in Skuta, where they spent some time together before proceeding to the location where the alleged offences occurred.
27. On cross-examination, he stated that at the time of making the report, the complainant did not have a phone. She did not have an OB number from Ruringu. An older female went to report with the complainant. He did not get the name of the boda boda rider from Ruringu police station. Tee was allegedly offering her a job. They tried to trace TEE in vain. He did not have the IMEI in court. When he met the complainant, she had been treated. He also did not investigate the complainant’s number. Unfortunately, he gave evidence of character, which is not permitted. The complainant had met the appellant at the police station.
28. The appellant was found to have a case to answer. Section 211 of the Criminal Procedure Code was complied with.
29. The appellant gave sworn testimony in his defence and called one witness. The appellant testified that he was a resident of Skuta and worked as a disc jockey (DJ) at a local club. He stated that he was introduced to the complainant by one Tracy, also known as “Queen T,” who was involved in promotional work. According to him, Tracy introduced the complainant because she was seeking employment opportunities, and he was requested to keep her company until Tracy arrived.
30. The appellant testified that on 01.05.2022, he met the complainant at Beavers Restaurant. He stated that the complainant later informed him that there was no need to continue waiting for Tracy. Thereafter, they proceeded to Ikulu, where the complainant paid for the drinks they consumed. He informed the complainant that he needed to visit his mother, who was bedridden. He later testified that he escorted the complainant to the main road and did not know where she went thereafter. He denied stealing her mobile phone and maintained that the complainant was in a jovial mood while they were at the club.
31. The appellant further testified that he lived in Skuta and denied ever going to St. Jude with the complainant. He stated that there was no river at St. Jude and denied threatening the complainant in any riparian area. He admitted that mobile number 0711 552 7352 belonged to him but explained that the money sent to that number was a tip intended for Queen T for assisting the complainant in securing employment.
32. He stated that he did not know the make or model of the complainant’s phone and denied being found in possession of it. He further denied causing any malicious damage to property. According to him, there was no alternative road leading to St. Jude as alleged by the prosecution.
33. The appellant testified that after parting ways with the complainant, he went to attend to his mother by taking her medication. He later went to town, where he purchased keg beer and paid Kshs. 70/=. He maintained that he had no involvement in the offences alleged against him.
34. The appellant further stated that he had previously been arrested in connection with a separate allegation of malicious damage to property, but denied any involvement in the offences forming the subject of the present case.
35. On cross-examination, the appellant testified that it was Queen T who initially called the complainant. He stated that he knew Queen T through club promotional activities, as she worked as a promoter in various clubs. He denied ever sexually assaulting the complainant or any other woman.
36. The appellant further testified that he had been arrested for an unrelated offence of malicious damage to property. He stated that he did not know the specific club where the proposed promotion job was to take place. He continued that Club Ikulu is situated along the Nyeri–Karatina Road. They were supposed to meet Queen T at about 8.00 p.m. he met the complainant earlier at approximately 6.30 p.m. He stated that he called Queen T via WhatsApp and that she informed him she was on her way. He, however, did not know whether the complainant was also communicating with Queen T while they were at Beavers Restaurant.
37. The appellant testified that they later left Club Ikulu, where the complainant had paid for the drinks they consumed. He stated that he arrived at his mother's house at about 11.45 p.m. and did not know where the complainant went thereafter. He maintained that the complainant sent him money as an incentive for assisting her to secure employment. However, he conceded that he did not know why she did not send the money directly to Queen T. He further stated that he did not know how the complainant sustained the marks allegedly observed on her body.
38. The appellant testified that the road leading to St. Jude proceeded towards Mesha and not Gatitu. He stated that the river is at Express Inn and not at St Jude. He further testified that there was a swamp in that area protected by guard rails. He denied taking the complainant’s phone. He stated that on the material day he paid Kshs. 100/= for a motorcycle ride from home and Kshs. 70/= at Club Victory. He also stated that he conducted an M-Pesa transaction of Kshs. 230/=. According to him, he stayed at home for about ten minutes before proceeding with his activities. He added that he was his parents’ only child.
39. On re-examination, the appellant testified that he parted ways with the complainant at about 11.30 p.m. and did not know where she went thereafter. He further stated that the P3 form indicated that the complainant had no physical injuries or marks on her body. The appellant denied being friends with Queen T, maintaining that he only knew her through promotional activities at entertainment venues. The appellant also testified that he did not know the person the complainant was speaking to on the phone during the material period. He further denied ever entering Beavers Guest House.
40. The appellant also denied forcing the complainant to pay any bills or expenses incurred during their meeting. He maintained that he left the complainant at St. Jude and thereafter went his own way. He reiterated that he neither assaulted nor robbed the complainant.
41. DW2, the appellant’s mother, gave evidence in support of the defence case. She stated that on 01.05.2022, the appellant left home at about 6.00 p.m. and returned between 11.30 p.m. and 11.45 p.m. She confirmed that the appellant was her son and her only child. She further stated that the appellant returned home during the night to administer her medication before leaving again to continue his work as a DJ. She stated that she could not recall whether it rained on the material night, but observed that the appellant did not appear to have been rained on when he returned home.
42. On cross-examination, DW2 testified that the appellant was her only child. She stated that she was bedridden and used a wheelchair. Her testimony was taken virtually. She further testified that on the material day, her husband was away at work as a driver, necessitating the appellant’s visit to administer her medication. She stated that she did not know where the appellant was or what he was doing between 6.00 p.m. and 11.00 p.m. She testified that the appellant remained at home for approximately 30 minutes before leaving again. According to her, when the appellant later returned, he was wearing the same clothes as earlier in the evening.
43. She further testified that the appellant argued with the witness’ sister-in-law, which had resulted in his arrest. It was his evidence that her husband had taken people on a private trip to Nyahururu on the material day. Due to her physical condition, she required assistance in getting out of bed and depended on the appellant to help her and administer her medication.
Impugned judgment
44. In its analysis of the evidence, the trial court found that the charge of attempted rape had not been proved. The court observed that, on the prosecution's own evidence, there was nothing to prevent the appellant from committing rape if that had been his intention. The court noted that, although the complainant had been taken to a secluded location and subjected to various acts, the evidence disclosed the commission of sexual offences other than attempted rape. Consequently, the court held that the ingredients of the offence of attempted rape had not been established and that the charge failed.
45. With regard to the charge of committing an indecent act with an adult, the court found the complainants was not corroborated. The court relied on section 124 of the Evidence Act. The court noted that the complainant remained consistent throughout cross-examination and never wavered in her account. It further found that the complainant positively identified the appellant as the person who had presented himself as “Ray,” noting that they had spent a considerable amount of time together before the offences occurred.
46. The court further held that the acts of sucking the complainant's breasts and inserting fingers into her vagina constituted sexual assault and amounted to an indecent act. The court noted that there had been a lapse of time between the occurrence of the offence and the complainant's medical examination, which could explain the absence of significant physical findings. In reaching its determination, the court relied on section 124 of the Evidence Act and accepted the complainant's testimony as truthful.
47. On the charge of robbery with violence, the court found that the appellant had assaulted the complainant and compelled her to send him money. The court further found that the appellant threatened to rape the complainant and to dispose of her body if she resisted. The court held that the violence used against the complainant included sexual violence. Having considered the evidence in its entirety, the court concluded that the ingredients of the offence of robbery with violence had been proved beyond reasonable doubt and accordingly found the charge established.
Submissions
48. The Appellant filed undated submissions forwarded on 24.11.2025. He added supplementary grounds in the appeal. Hr submitted that the prosecution case was riddled with inconsistencies. The court convicted on uncorroborated evidence of PW1. The alleged stolen items were not shown to belong to her. The charge sheet was also said to be defective contrary to section 134 of the Criminal Procedure Code. He submitted that the charge did not meet the required legal standard and that its framing compromised his ability to understand the charge against him.
49. He further submitted that there was failure to frame minor offences as alternatives. Therefore, it resulted in the appellant being charged with the same offences arising from the same factual transaction. Reliance on the case of David Ndumba v Republic [2013] KECA 233 (KLR) , where the court of appeal [Visram, Koome & Odek, JJ.A, as they then were] held as follows:
Having perused the record, we cannot help but note that the appellant’s defence was considered by the trial court, which found that there was no reason for Grace and Geoffrey to give false testimony against him. On the issue of the alternative charge, we find that nothing turns on the fact that the trial court did not make a pronouncement on the same. In M.B.O. –vs- Republic, – Criminal Appeal No. 342 of 2008, this Court held,
‘The practice of charging offences in the alternative is one of abundant caution, and that is why no finding is made on such charge once there is ample evidence to support the main charge.
50. He lamented that the court also breached double jeopardy by convicting him of sexual assault and, at the same time, using the same conduct for robbery with violence. He also submitted that section 296(2) of the Penal Code is an aggravating form of theft. There was no proof that the items alleged to have been lost belonged to the complainant or that she had them. There was also no evidence that the offender was armed with a dangerous weapon, was wounded, beaten or struck, or used personal violence immediately before or after the robbery. Reliance was placed on the case of Oluoch vs. Republic [1985] KLR 549 and Gazi & 2 others v Republic (2005) KLR.
51. There was no evidence that the phone existed and/or was recovered from the appellant or stolen from the complainant. It must be shown that the goods recovered were the same ones stolen, and mere resemblance is not enough. Reliance was placed on the case of Samuel Mwangi Macharia & 2 others v Republic [2015] KECA 768 (KLR) , where the court of appeal [Mwilu, Musinga & Kiage, JJ.A.] stated as follows:
When an item that is alleged to have been stolen is recovered, the person from whom it was stolen must be able to satisfy the court by production of relevant evidence that the item is the one that was stolen from him and not any other. It is not enough to show that the recovered item resembles the one that was stolen. In this case, PW1 told the trial court that he had a receipt that was issued to him when he purchased the cell phone, but he did not produce the same. Pw1 also did not tell the trial court the serial number of his cell phone or adduce any other evidence, like that of an inscription of a mark on the recovered cell phone, to satisfy the court that it was indeed the one that had been stolen from him. There are many Motorola C113A cell phones which look alike, and it was therefore necessary that PW1 distinguish his from any other of a similar make. Consequently, the recovery of that cell phone from the vehicle in which the appellants were riding per se cannot amount to sufficient evidence to sustain the conclusion that the appellants were the ones who robbed PW1 of the same.
52. He submitted that failure to prove the existence of money and the phone was fatal to the case. Reliance was placed on the case of Langat v Republic [2024] KEHC 4406 (KLR) , where GL Nzioka J, stated as follows:
PW3 No. 5989850 PC Mike Maganje, who investigated the matter, did not allude to the ownership of the stolen phone and money. He did not inform the court whether he ever sought the receipt to prove the phone was bought and later stolen or whether he even requested PW2 Njenga, who bought the phone, to give him a receipt. In cross-examination, the investigating officer stated:
‘I asked for a receipt of the phone later on. She did not have the receipt when first report was recorded’
He rested his evidence there and the prosecutor did not pursue it in the re-examination.
34.Pursuant to the aforesaid there is no conclusive evidence that the phone and the money stolen were in the complainant’s possession before the theft. They may or may not, which creates doubt to the benefit of the appellant.
53. He submitted that the state did not prove ownership. There was no forensic evidence linking the phone to the complainant and the theft. The number was stated to be registered in the name of Mirriam Wangare, who was not called. He relied on the case of Wanjiku v Republic [2024] KEHC 4184 (KLR) , where GL Nzioka, J, held as follows:
In the instant matter, I note that, although PW1, Wamaitha, testified that she was robbed of Kshs 5000/- which was not recovered, no evidence was led to prove that the money existed before it was stolen. She testified that the Kshs 5,000/- was her daily collection, but no evidence was led that she worked as a conductor, employer, the motor vehicle or any other form of evidence. Therefore, it was not established how much money she had and how much was stolen. In the same vein, PW2 Laban did not produce any evidence to prove the existence and/or ownership of the stolen phone or money. Therefore, the element of robbery was not proved.
54. It was submitted that the alleged theft, central to the robbery, was not proved. The charge sheet did not specify the nature of the weapon, and none was testified on. Absence of a weapon renders the offence unproved. They relied on the case of Suleiman Juma v Republic [2001] KEHC 825 (KLR) , where [Onyancha J & Khaminwa CA), held as follows
If our interpretation of s 296(2) of the Penal Code as done hereinabove is correct (and we so hold) the words “dangerous or offensive weapons” need not be imperatively included in each charge. The prosecution would include only the words of s 296(2) that the facts of the case would necessarily require. In the case before us the charge stated that the accused was armed with a sword without describing the knife as a dangerous or offensive weapon or instrument. As stated in the Court of Appeal Criminal
Appeal No 86 of 2000, Daniel Moraa Mose –vs- Republic, a charge with that ingredient omitted is likely to bring prejudice and lead to injustice and is incurable especially where the accused is not represented by counsel.
We hold that it cannot be said that the appellant was not prejudiced in this case. We hold also that the defect in the charge was material and was not curable. The appellant’s appeal therefore succeeds on this ground
55. Further reliance was placed on the case of Daniel Muthomi M’arimi v Republic [2013] KECA 237 (KLR) , where the court of appeal [Visram, Koome & Otieno-Odek, JJ.A] held as follows:
In the present case, the appellant is faced with a charge of robbery with violence contrary to Section 296 (2) of the Penal Code. A charge under this section has three essential ingredients that must be proved by the prosecution. In Johana Ndungu –v – R, Criminal Appeal No. 116 of 1995, the ingredients for the charge of robbery with violence were stated to be:
(i) if the offender is armed with any dangerous or offensive weapon or instrument or
(ii) if he is in company with one or more other person or persons or
(iii) if, at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other violence to any person.
11. We are alive to the requirement that proof of any one of the ingredients of robbery with violence is enough to base a conviction on under Section 296 (2) of the Penal Code. In the case of Juma v. Republic, [2003] of R.A 471 , it was held that “where the prosecution is relying on an element or ingredient of being armed, it must be stated that in the particulars of the charge that the weapon or instrument which the appellant was armed was a dangerous or offensive one
56. He submitted that the limb of being in a company of another was not applicable as the appellant was said to be alone. Reliance was placed on Musa Ahmed v Republic [2016] KEHC 5995 (KLR) . Further, he testified that they did not testify on physical injuries. The description given relates more to sexual assault than not. This could even be simple robbery and not robbery with violence. Reliance was placed on the case of Donald Atemia Sipendi v Republic [2019] KEHC 10855 (KLR) , where J, held as follows:
The third ingredient is that at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. First, there is no mention that at or immediately after the time of the robbery the complainant was wounded or beaten. There is no mention that he she was struck or he used violence. She said they struggled and he took her handbag. At page 16 she stated that he over powered her then she released her handbag. She also stated that she had no visible injuries.
27. The evidence tendered in this case did not establish the ingredients of Robbery with violence. In my view it could only be useful if the appellant was charged under section 296(1) of the Penal Code[9] which provides a maximum sentence of 14 years.
[...truncated]
2. The first count was attempted rape contrary to Section 4 of the Sexual Offences Act. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri County, he intentionally attempted to commit an act of penetration of the penis into the vagina of TNG
3. The second count was committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri County, he unlawfully and intentionally sucked the breast of TNG
4. The third count was sexual assault contrary to Section 5(1)(a) (i) as read with Section 5(2) of the Sexual Offences Act. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri County, he unlawfully penetrated the vagina of TNG with his fingers.
5. The fourth count was robbery with violence contrary to section 296(2) of the Penal Code. The particulars being that on 1.05.2022, at Skuta area in Nyeri Central Sub-County within Nyeri, he robbed TNG Ksh 1,000 from her M-Pesa account and a Tecno Spark 8P phone valued Ksh. 16,000/= and immediately before the time of the said robbery threatened to use personal violence against TNG.
6. The appellant was arrested on 28.09.2022 and taken to court on 29.09.2022. He pleaded not guilty to all 4 counts. The court directed that the Appellant be provided with legal representation. However, there were no bond proceedings on record. Upon hearing the witnesses, the court acquitted the appellant of count 1, attempted rape. He was convicted on count 2, committing an indecent act, count 3, sexual assault, and count 4, robbery with violence.
7. The appellant was sentenced as follows:
a. Count 1 – acquitted
b. Count 2 - 4 years
c. Count 2 - 15 years
d. Robbery with violence - 50 years
e. The sentences were to run concurrently from the date of remand.
8. The appellant filed an appeal and set forth the following grounds of appeal:
COPY
9. The following supplementary grounds were filed:
COPY
10. The PW1 was Daniel Hamisi of Safaricom department of law enforcement liaison officer, Safaricom headquarters. He was assigned TO investigate an account through a warrant dated 4.1.2022. It was Misc. Application No. 141 of 2022. He prepared a report dated 10.11.2022; it was for an account of Brian Waithegani. The statement relates to 30.4.2022 and 4.05.2022. He prepared a certificate dated 1.02.2022. he was not cross-examined.
11. PW2, TNG, testified that she was a student. She stated that she met a lady known as TEE, who promised to help her secure a promotion job with Supreme. On the material day, TEE informed her that she would not be able to accompany her and instead told her that a person called Ray would pick her up and take her to Gatitu for an interview.PW2 testified that Ray later called her and asked her to go to Beavers, which she did. Upon meeting him, Ray informed her that TEE was in Chaka and that they would have to wait for her before leaving. They engaged in casual conversation before proceeding to Ikulu in Skuta, where they were allegedly to wait for TEE.
12. According to PW2, the appellant insisted that she order a drink while they waited. She complied and paid for the drinks herself. Ray informed her that TEE had requested that they meet at a certain roundabout before proceeding to Gatitu. However, they took a different route. Along the way, they encountered people smoking cannabis by the roadside. At that point, PW2 began to suspect that there was no job interview as promised, particularly when they reached the end of the road. PW2 testified that they eventually arrived at a bushy area. She started questioning Ray about their destination and the promised interview. In response, Ray slapped her
13. PW2 testified that after slapping her, the appellant threw away her bag, lifted her dress, and removed her brassiere. He then demanded that she “please him as a man.” She stated that, out of fear, she complied with his demands. According to her testimony, the appellant instructed her to satisfy men without engaging in sexual intercourse. He made her stand up and, after removing her brassiere, touched and sucked her breasts.
14. PW2 further testified that she was compelled to stimulate the appellant’s penis. She stated that the appellant threatened her, telling her that he could rape her and dispose of her body without anyone knowing. She testified that she feared for her safety and therefore complied with his demands. PW2 also stated that the appellant inquired whether she had any money and later sent money to her. She explained that the mobile phone number used for the transaction was registered in the name of her aunt.
15. PW2 further testified that the appellant demanded that she hand over her mobile phone. Before surrendering it, she removed the password from the device. Thereafter, they parted ways. She stated that she later obtained the services of a motorcycle rider, who informed her of the appellant's name. PW2 further testified that the person who sucked her breasts also inserted his fingers into her vagina. She described the appellant as being very aggressive. She continued that the appellant told her that both his father and mother had died. She further testified that he spat on her during the ordeal.
16. On cross-examination, PW2 testified that she identified the appellant at the police station. However, she stated there was no identification parade report. Her evidence was that she was able to recognise the appellant's face and that she also saw him during police interrogation. She maintained that the person who had introduced himself as “Ray” was the appellant seated before the court. PW2 further testified that she paid for the drinks they partook of at Skuta. She testified that she was not familiar with the area. She stated that TEE had previously sent her photographs relating to the purported job opportunity, but she did not provide those photographs to the court or the investigating authorities.
17. She testified that she could not remember the name of the boda boda rider who assisted her after the incident. PW2 further stated that she did not scream or raise an alarm during the ordeal. However, she provided the police with the rider’s telephone number and the phone number associated with the incident. PW2 also testified that the boda boda rider threatened to throw her into a river. The relevance of this last statement is unclear.
18. She stated that she told the court that the phone was stolen. She did not show the text message or produce evidence to show that the Tecno phone existed. She was stood down, and later her phone was not going through.
19. PW2 was later recalled, sworn, and testified in Kiswahili. She stated that her aunt, Miriam Wangari, was not a witness in the case. She further testified that the boda boda rider also accompanied her to the police station, although she did not know whether he recorded a statement with the police.
20. PW2 stated that she informed two people about the incident. She admitted that she had consumed alcohol on the material day but maintained that she was not intoxicated. She further testified that she sent money to the appellant. However, she stated that she did not know the real name of TEE. PW2 maintained that the incident had indeed occurred and insisted that she was telling the truth.
21. On re-examination, PW2 stated that she identified the appellant when she saw him at the police station. She explained that she followed the person known as Ray because he had informed her that TEE was on her way. She further testified that she attempted to contact her parents but was unsuccessful.
22. PW2 stated that she began sensing danger while at the club when TEE failed to answer her phone calls. She stated that the money she sent to the appellant was not related to any job opportunity. Rather, she sent it because Brian had threatened her.
23. PW 3 was William Muriuki who testified that he is a doctor at Nyeri County Referral Hospital. He had a bachelor’s degree in medicine and surgery. She reported that she was sexually assaulted; she stated that she had an old broken hymen and there were no external injuries. The PRC was filled. The patient had not attended any medical facility before. There were no bodily injuries, and he reported that a person inserted fingers in her vagina and threatened to kill her.
24. PW4, Police Constable Newton Mwangi of Nyeri Police Station, testified that he was the investigating officer in the matter. He stated that the complainant reported a robbery with violence on 4.05.2022. According to the report, the appellant demanded Ksh. 1,000 from the complainant, which she subsequently sent. The money was transmitted via mobile number 07115527352. Investigations revealed that the number was registered in the name of Miriam Wangari, although further inquiries linked its use to the appellant.
25. PW3 testified that he obtained warrants to investigate the appellant’s M-Pesa account. He also visited the scene of the alleged offence, which was a riparian area. According to the complainant’s account, this was the location where the appellant threatened to throw her into the river before robbing her of her mobile phone. The officer further testified that the complainant initially reported the matter at Ruringu Police Station on 02.05.2022 but was dissatisfied with the response she received there. She thereafter proceeded to Nyeri Central Police Station, where the complaint was formally recorded, and investigations commenced.
26. PW3 stated that investigations established that the appellant had allegedly slapped the complainant, inserted his fingers into her vagina, forced her to perform oral sex on him, and sucked her breasts. He further testified that the appellant and the complainant had been communicating prior to meeting and eventually met at a bar in Skuta, where they spent some time together before proceeding to the location where the alleged offences occurred.
27. On cross-examination, he stated that at the time of making the report, the complainant did not have a phone. She did not have an OB number from Ruringu. An older female went to report with the complainant. He did not get the name of the boda boda rider from Ruringu police station. Tee was allegedly offering her a job. They tried to trace TEE in vain. He did not have the IMEI in court. When he met the complainant, she had been treated. He also did not investigate the complainant’s number. Unfortunately, he gave evidence of character, which is not permitted. The complainant had met the appellant at the police station.
28. The appellant was found to have a case to answer. Section 211 of the Criminal Procedure Code was complied with.
29. The appellant gave sworn testimony in his defence and called one witness. The appellant testified that he was a resident of Skuta and worked as a disc jockey (DJ) at a local club. He stated that he was introduced to the complainant by one Tracy, also known as “Queen T,” who was involved in promotional work. According to him, Tracy introduced the complainant because she was seeking employment opportunities, and he was requested to keep her company until Tracy arrived.
30. The appellant testified that on 01.05.2022, he met the complainant at Beavers Restaurant. He stated that the complainant later informed him that there was no need to continue waiting for Tracy. Thereafter, they proceeded to Ikulu, where the complainant paid for the drinks they consumed. He informed the complainant that he needed to visit his mother, who was bedridden. He later testified that he escorted the complainant to the main road and did not know where she went thereafter. He denied stealing her mobile phone and maintained that the complainant was in a jovial mood while they were at the club.
31. The appellant further testified that he lived in Skuta and denied ever going to St. Jude with the complainant. He stated that there was no river at St. Jude and denied threatening the complainant in any riparian area. He admitted that mobile number 0711 552 7352 belonged to him but explained that the money sent to that number was a tip intended for Queen T for assisting the complainant in securing employment.
32. He stated that he did not know the make or model of the complainant’s phone and denied being found in possession of it. He further denied causing any malicious damage to property. According to him, there was no alternative road leading to St. Jude as alleged by the prosecution.
33. The appellant testified that after parting ways with the complainant, he went to attend to his mother by taking her medication. He later went to town, where he purchased keg beer and paid Kshs. 70/=. He maintained that he had no involvement in the offences alleged against him.
34. The appellant further stated that he had previously been arrested in connection with a separate allegation of malicious damage to property, but denied any involvement in the offences forming the subject of the present case.
35. On cross-examination, the appellant testified that it was Queen T who initially called the complainant. He stated that he knew Queen T through club promotional activities, as she worked as a promoter in various clubs. He denied ever sexually assaulting the complainant or any other woman.
36. The appellant further testified that he had been arrested for an unrelated offence of malicious damage to property. He stated that he did not know the specific club where the proposed promotion job was to take place. He continued that Club Ikulu is situated along the Nyeri–Karatina Road. They were supposed to meet Queen T at about 8.00 p.m. he met the complainant earlier at approximately 6.30 p.m. He stated that he called Queen T via WhatsApp and that she informed him she was on her way. He, however, did not know whether the complainant was also communicating with Queen T while they were at Beavers Restaurant.
37. The appellant testified that they later left Club Ikulu, where the complainant had paid for the drinks they consumed. He stated that he arrived at his mother's house at about 11.45 p.m. and did not know where the complainant went thereafter. He maintained that the complainant sent him money as an incentive for assisting her to secure employment. However, he conceded that he did not know why she did not send the money directly to Queen T. He further stated that he did not know how the complainant sustained the marks allegedly observed on her body.
38. The appellant testified that the road leading to St. Jude proceeded towards Mesha and not Gatitu. He stated that the river is at Express Inn and not at St Jude. He further testified that there was a swamp in that area protected by guard rails. He denied taking the complainant’s phone. He stated that on the material day he paid Kshs. 100/= for a motorcycle ride from home and Kshs. 70/= at Club Victory. He also stated that he conducted an M-Pesa transaction of Kshs. 230/=. According to him, he stayed at home for about ten minutes before proceeding with his activities. He added that he was his parents’ only child.
39. On re-examination, the appellant testified that he parted ways with the complainant at about 11.30 p.m. and did not know where she went thereafter. He further stated that the P3 form indicated that the complainant had no physical injuries or marks on her body. The appellant denied being friends with Queen T, maintaining that he only knew her through promotional activities at entertainment venues. The appellant also testified that he did not know the person the complainant was speaking to on the phone during the material period. He further denied ever entering Beavers Guest House.
40. The appellant also denied forcing the complainant to pay any bills or expenses incurred during their meeting. He maintained that he left the complainant at St. Jude and thereafter went his own way. He reiterated that he neither assaulted nor robbed the complainant.
41. DW2, the appellant’s mother, gave evidence in support of the defence case. She stated that on 01.05.2022, the appellant left home at about 6.00 p.m. and returned between 11.30 p.m. and 11.45 p.m. She confirmed that the appellant was her son and her only child. She further stated that the appellant returned home during the night to administer her medication before leaving again to continue his work as a DJ. She stated that she could not recall whether it rained on the material night, but observed that the appellant did not appear to have been rained on when he returned home.
42. On cross-examination, DW2 testified that the appellant was her only child. She stated that she was bedridden and used a wheelchair. Her testimony was taken virtually. She further testified that on the material day, her husband was away at work as a driver, necessitating the appellant’s visit to administer her medication. She stated that she did not know where the appellant was or what he was doing between 6.00 p.m. and 11.00 p.m. She testified that the appellant remained at home for approximately 30 minutes before leaving again. According to her, when the appellant later returned, he was wearing the same clothes as earlier in the evening.
43. She further testified that the appellant argued with the witness’ sister-in-law, which had resulted in his arrest. It was his evidence that her husband had taken people on a private trip to Nyahururu on the material day. Due to her physical condition, she required assistance in getting out of bed and depended on the appellant to help her and administer her medication.
Impugned judgment
44. In its analysis of the evidence, the trial court found that the charge of attempted rape had not been proved. The court observed that, on the prosecution's own evidence, there was nothing to prevent the appellant from committing rape if that had been his intention. The court noted that, although the complainant had been taken to a secluded location and subjected to various acts, the evidence disclosed the commission of sexual offences other than attempted rape. Consequently, the court held that the ingredients of the offence of attempted rape had not been established and that the charge failed.
45. With regard to the charge of committing an indecent act with an adult, the court found the complainants was not corroborated. The court relied on section 124 of the Evidence Act. The court noted that the complainant remained consistent throughout cross-examination and never wavered in her account. It further found that the complainant positively identified the appellant as the person who had presented himself as “Ray,” noting that they had spent a considerable amount of time together before the offences occurred.
46. The court further held that the acts of sucking the complainant's breasts and inserting fingers into her vagina constituted sexual assault and amounted to an indecent act. The court noted that there had been a lapse of time between the occurrence of the offence and the complainant's medical examination, which could explain the absence of significant physical findings. In reaching its determination, the court relied on section 124 of the Evidence Act and accepted the complainant's testimony as truthful.
47. On the charge of robbery with violence, the court found that the appellant had assaulted the complainant and compelled her to send him money. The court further found that the appellant threatened to rape the complainant and to dispose of her body if she resisted. The court held that the violence used against the complainant included sexual violence. Having considered the evidence in its entirety, the court concluded that the ingredients of the offence of robbery with violence had been proved beyond reasonable doubt and accordingly found the charge established.
Submissions
48. The Appellant filed undated submissions forwarded on 24.11.2025. He added supplementary grounds in the appeal. Hr submitted that the prosecution case was riddled with inconsistencies. The court convicted on uncorroborated evidence of PW1. The alleged stolen items were not shown to belong to her. The charge sheet was also said to be defective contrary to section 134 of the Criminal Procedure Code. He submitted that the charge did not meet the required legal standard and that its framing compromised his ability to understand the charge against him.
49. He further submitted that there was failure to frame minor offences as alternatives. Therefore, it resulted in the appellant being charged with the same offences arising from the same factual transaction. Reliance on the case of David Ndumba v Republic [2013] KECA 233 (KLR) , where the court of appeal [Visram, Koome & Odek, JJ.A, as they then were] held as follows:
Having perused the record, we cannot help but note that the appellant’s defence was considered by the trial court, which found that there was no reason for Grace and Geoffrey to give false testimony against him. On the issue of the alternative charge, we find that nothing turns on the fact that the trial court did not make a pronouncement on the same. In M.B.O. –vs- Republic, – Criminal Appeal No. 342 of 2008, this Court held,
‘The practice of charging offences in the alternative is one of abundant caution, and that is why no finding is made on such charge once there is ample evidence to support the main charge.
50. He lamented that the court also breached double jeopardy by convicting him of sexual assault and, at the same time, using the same conduct for robbery with violence. He also submitted that section 296(2) of the Penal Code is an aggravating form of theft. There was no proof that the items alleged to have been lost belonged to the complainant or that she had them. There was also no evidence that the offender was armed with a dangerous weapon, was wounded, beaten or struck, or used personal violence immediately before or after the robbery. Reliance was placed on the case of Oluoch vs. Republic [1985] KLR 549 and Gazi & 2 others v Republic (2005) KLR.
51. There was no evidence that the phone existed and/or was recovered from the appellant or stolen from the complainant. It must be shown that the goods recovered were the same ones stolen, and mere resemblance is not enough. Reliance was placed on the case of Samuel Mwangi Macharia & 2 others v Republic [2015] KECA 768 (KLR) , where the court of appeal [Mwilu, Musinga & Kiage, JJ.A.] stated as follows:
When an item that is alleged to have been stolen is recovered, the person from whom it was stolen must be able to satisfy the court by production of relevant evidence that the item is the one that was stolen from him and not any other. It is not enough to show that the recovered item resembles the one that was stolen. In this case, PW1 told the trial court that he had a receipt that was issued to him when he purchased the cell phone, but he did not produce the same. Pw1 also did not tell the trial court the serial number of his cell phone or adduce any other evidence, like that of an inscription of a mark on the recovered cell phone, to satisfy the court that it was indeed the one that had been stolen from him. There are many Motorola C113A cell phones which look alike, and it was therefore necessary that PW1 distinguish his from any other of a similar make. Consequently, the recovery of that cell phone from the vehicle in which the appellants were riding per se cannot amount to sufficient evidence to sustain the conclusion that the appellants were the ones who robbed PW1 of the same.
52. He submitted that failure to prove the existence of money and the phone was fatal to the case. Reliance was placed on the case of Langat v Republic [2024] KEHC 4406 (KLR) , where GL Nzioka J, stated as follows:
PW3 No. 5989850 PC Mike Maganje, who investigated the matter, did not allude to the ownership of the stolen phone and money. He did not inform the court whether he ever sought the receipt to prove the phone was bought and later stolen or whether he even requested PW2 Njenga, who bought the phone, to give him a receipt. In cross-examination, the investigating officer stated:
‘I asked for a receipt of the phone later on. She did not have the receipt when first report was recorded’
He rested his evidence there and the prosecutor did not pursue it in the re-examination.
34.Pursuant to the aforesaid there is no conclusive evidence that the phone and the money stolen were in the complainant’s possession before the theft. They may or may not, which creates doubt to the benefit of the appellant.
53. He submitted that the state did not prove ownership. There was no forensic evidence linking the phone to the complainant and the theft. The number was stated to be registered in the name of Mirriam Wangare, who was not called. He relied on the case of Wanjiku v Republic [2024] KEHC 4184 (KLR) , where GL Nzioka, J, held as follows:
In the instant matter, I note that, although PW1, Wamaitha, testified that she was robbed of Kshs 5000/- which was not recovered, no evidence was led to prove that the money existed before it was stolen. She testified that the Kshs 5,000/- was her daily collection, but no evidence was led that she worked as a conductor, employer, the motor vehicle or any other form of evidence. Therefore, it was not established how much money she had and how much was stolen. In the same vein, PW2 Laban did not produce any evidence to prove the existence and/or ownership of the stolen phone or money. Therefore, the element of robbery was not proved.
54. It was submitted that the alleged theft, central to the robbery, was not proved. The charge sheet did not specify the nature of the weapon, and none was testified on. Absence of a weapon renders the offence unproved. They relied on the case of Suleiman Juma v Republic [2001] KEHC 825 (KLR) , where [Onyancha J & Khaminwa CA), held as follows
If our interpretation of s 296(2) of the Penal Code as done hereinabove is correct (and we so hold) the words “dangerous or offensive weapons” need not be imperatively included in each charge. The prosecution would include only the words of s 296(2) that the facts of the case would necessarily require. In the case before us the charge stated that the accused was armed with a sword without describing the knife as a dangerous or offensive weapon or instrument. As stated in the Court of Appeal Criminal
Appeal No 86 of 2000, Daniel Moraa Mose –vs- Republic, a charge with that ingredient omitted is likely to bring prejudice and lead to injustice and is incurable especially where the accused is not represented by counsel.
We hold that it cannot be said that the appellant was not prejudiced in this case. We hold also that the defect in the charge was material and was not curable. The appellant’s appeal therefore succeeds on this ground
55. Further reliance was placed on the case of Daniel Muthomi M’arimi v Republic [2013] KECA 237 (KLR) , where the court of appeal [Visram, Koome & Otieno-Odek, JJ.A] held as follows:
In the present case, the appellant is faced with a charge of robbery with violence contrary to Section 296 (2) of the Penal Code. A charge under this section has three essential ingredients that must be proved by the prosecution. In Johana Ndungu –v – R, Criminal Appeal No. 116 of 1995, the ingredients for the charge of robbery with violence were stated to be:
(i) if the offender is armed with any dangerous or offensive weapon or instrument or
(ii) if he is in company with one or more other person or persons or
(iii) if, at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other violence to any person.
11. We are alive to the requirement that proof of any one of the ingredients of robbery with violence is enough to base a conviction on under Section 296 (2) of the Penal Code. In the case of Juma v. Republic, [2003] of R.A 471 , it was held that “where the prosecution is relying on an element or ingredient of being armed, it must be stated that in the particulars of the charge that the weapon or instrument which the appellant was armed was a dangerous or offensive one
56. He submitted that the limb of being in a company of another was not applicable as the appellant was said to be alone. Reliance was placed on Musa Ahmed v Republic [2016] KEHC 5995 (KLR) . Further, he testified that they did not testify on physical injuries. The description given relates more to sexual assault than not. This could even be simple robbery and not robbery with violence. Reliance was placed on the case of Donald Atemia Sipendi v Republic [2019] KEHC 10855 (KLR) , where J, held as follows:
The third ingredient is that at or immediately after the time of the robbery, he wounds, beats, strikes or uses violence to any person. First, there is no mention that at or immediately after the time of the robbery the complainant was wounded or beaten. There is no mention that he she was struck or he used violence. She said they struggled and he took her handbag. At page 16 she stated that he over powered her then she released her handbag. She also stated that she had no visible injuries.
27. The evidence tendered in this case did not establish the ingredients of Robbery with violence. In my view it could only be useful if the appellant was charged under section 296(1) of the Penal Code[9] which provides a maximum sentence of 14 years.
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