REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E066 OF 2023 AND E020 OF 2025 (CONSOLIDATED)
BENJAMIN MUNENE………………………....………………………..1 ST APPELLANT
FRANCIS GICHIMO ..........................................................................2 ND APPELLANT
VERSUS
REPUBLIC……………………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction and sentence delivered on 13 th December 2023 by Hon. Alex Ithuku, Chief Magistrate in Kerugoya Magistrates Court Criminal Case No. E132 of 2022)
J U D G M E N T
1. The two appellants herein filed separate appeals, each of his own. The files were therefore not consolidated but since the appeals arise from the same trial in the magistrate’s court, I will deliver a consolidated judgment in this appeal
2. The appellants were charged and convicted on two counts as follows:
i. Count 1: Robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 18 th February 2023 at Kerugoya Township within Kirinyaga County, jointly robbed J.W.K of her phone, make Itel Button, black in colour valued at KShs 1,200/= and cash KShs 5,200/= and immediately before the time of such robbery hit the said J.W.K. on the face using a bar of timber.
ii. Count 2: Gang Rape contrary to section 10 of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on 18 th February 2023 at Kerugoya Township within Kirinyaga County the two in association with each other intentionally and unlawfully caused their penises to penetrate the vagina of J.W.K. without her consent.
iii. Alternative charge to Gang Rape
Indecent act with an adult contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date, place and time as in the principal charge of gang rape, the two in association with each other intentionally and unlawfully touched the vagina, buttocks and breasts of J.W.K without her consent.
3. They were sentenced to suffer death on the charge of robbery with violence while the learned trial magistrate suspended sentencing on the charge of gang rape.
4. The appellants were aggrieved by the convictions and sentences and preferred their separate appeals on 27 th December 2023. Francis Gichomo Muthoni’s appeal was No. E065 of 2023 while that of Benjamin Munene was No. E066 of 2023. The appeals bore the same grounds that:
i. the learned trial magistrate erred in law and facts by failing to consider that the evidence produced in court was not credible, was full of contradictions and inconsistencies and the case was not proved beyond a reasonable doubt.
ii. the learned trial magistrate erred in law and facts by failing to consider that no evidence was adduced to prove the charge of gang rape.
iii. the learned trial magistrate erred in law and facts by failing to consider that there was no proof of ownership of the mobile phone as no receipt was produced.
iv. the learned trial magistrate erred in law and facts by passing a hash and excessive sentence.
v. the learned trial magistrate erred in law and facts by failing to consider the appellant’s defence and mitigation.
5. The appellants therefore pray that the appeal be allowed in its entirety.
6. There appears to have been some mix-up leading to Francis Gichimo filing a second appeal No. E020 of 2025 on grounds that:
i. The learned trial magistrate erred in both law and fact in failing to appreciate that the alleged victim in the case clearly demonstrated an incredibly doubtful integrity.
ii. The learned trial magistrate erred in both law and fact in failing to appreciate that the critical elements of robbery with violence were not proved to the required standard in law thereby occasioning a serious miscarriage of justice.
iii. The learned trial magistrate erred in both law and fact in failing to consider the plausible defence by the appellant which was not contested and/or unproved by the prosecution hence it still stands, clearly demonstrating that the case was a frame-up to curtail his success due to envy.
iv. The learned trial magistrate erred in both law and fact by imposing a mandatory indefinite sentence.
v. This court considers the provisions of section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya to be factored in his sentence.
7. In view of the mix-up Benjamin Munene’s appeal now takes the first position and he is thus the 1 st appellant while Francis Gichimo’s appeal takes the second position and he becomes the 2 nd appellant.
8. The appeal was disposed of by way of written submissions filed by the appellants and learned counsel for the respondent.
9. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 .
10. The prosecution called three witnesses to support its case. PW 1, JWK was the complainant. PW 2’s name was not recorded although the P3 form indicates his name as Macharia. He was a clinical officer based at Kerugoya County Referral hospital. He examined the complainant. PW 3, PC Milka Ndung’u from Kerugoya police station was the investigating officer.
11. Each of the appellants gave sworn evidence in defence and denied that he committed the offence. The 2 nd appellant called one witness, DW 3, Miriam Muthoni, his mother.
12. PW 1 testified that on the night of 18 th February 2023 at 9.00 p.m. she had gone to collect her pay for a casual job she had done that day from her employer whom she had not found when on her way home she met the 1 st appellant, a “boda boda” operator well known to her as Osama, outside County Club. She asked the 1 st appellant to ferry her home. He was company of the 2 nd appellant, also well known to her and who was also a passenger on the same motorcycle. Along the way, the 1 st appellant detoured from the route and rode towards the market where they both assaulted her, ordered her to undress and engaged in non-consensual sexual intercourse with her. The 2 nd appellant also took KShs 5,200/= from her and the two fought at the scene and then took off leaving the motor cycle behind. The 1 st appellant came back to her with her mobile phone. He had also taken her clothes and she dressed. She then ran away shouting, the 1 st appellant’s name Osama, by which he is commonly known in the area. He ran after her while with her phone.
13. The complainant reported the incident at Kerugoya police station the following day. She gave out the appellants’ names. The 1 st appellant was arrested the same day. They visited the 1 st appellant’s house and her phone, Itel was recovered from there. It was produced in evidence as Exhibit 4.
14. The complainant was medically attended to at the Kerugoya County Referral Hospital.
15. PW 2 said that he completed the complainant’s P3 form relying on the treatment card that was filled by Dr. Ann who also completed a Post Rape Care form for the complainant. PW 2 produced the treatment notes, PRC form and P3 form as exhibits. His opinion was that the complainant’s genital organ had been penetrated.
16. PW 3 testified that the complainant reported to her the incident on 19 th February 2023. She told her that she was going home at 1.00 a.m. when the incident happened. PW 3 arrested the 1 st appellant outside Kerugoya Law Courts grounds where he was attending another case as she had previously arrested him. He took them to his home where they recovered the stolen phone. The 2 nd appellant was arrested by the area chief. Both of the appellants bore bruises and they were taken to hospital.
17. In defence, the 1 st appellant said he operates a boda boda within Kerugoya. He denied that he knew anything about the case. In cross-examination he conceded that he is commonly known by the name of Osama in the streets of Kerugoya by other boda boda riders. He said that the phone was recovered from his house but it belonged to his friend called Alex but the complainant claimed that it was hers. He denied that he met the complainant on the material night. He said that he usually sees the 2 nd appellant in town.
18. The 2 nd appellant testified that on the material night he did not go to Kerugoya town but was arrested the following day while in town where he has a rental house. He said that the complainant was known to her and his family for long and that she works in town. He also said that the 1 st appellant is known to him as a boda boda rider and he works in town as such.
19. DW 3, Miriam Muthoni is the 2 nd appellant’s mother. She testified that the complainant is her friend and they used to live with her son on the same plot. She said that on the material night the 2 nd appellant was in at Kaitheri at her home and spent the night in his brother’s house. He had fought with his friends in January 2023 and he had been hospitalized. He went home on 18 th February 2023 from Kerugoya town where he lives.
20. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellants beyond a reasonable doubt on both counts. He dismissed the appellants’ defences and convicted them accordingly.
21. In arriving at his decision, the learned trial magistrate found that the case largely turned on the issue of identification of the assailants. That the two appellants were well known to the complainant and she readily identified them. The learned trial magistrate was satisfied that the mandatory guidelines for evaluating the reliability of eyewitness identification evidence as set out R v Turnbull [1977] QB 224 had been satisfied. He did not however set out the said factors. Further, that the fact that the fact that the complainant’s mobile phone was found in the house of the 1 st appellant corroborated her evidence that indeed he had stolen it from her.
22. On the charge of robbery with violence, the learned trial magistrate was satisfied that the ingredients of the offence as set out under section 296(2) of the Penal Code had been proved by the prosecution. He also found that the appellants had stolen the complainant’s money and mobile phone. That they were more than one and that they had assaulted her in the course of the robbery.
23. On the charge of gang rape the learned trial magistrate was satisfied that the ingredients of the offence as set out under section 10 of the SOA had been proved to the required standard. He found that both appellants had engaged in the act of penetration of the complainant’s genital organ, starting with the 2 nd appellant and then the 1 st appellant who had removed her blouse.
24. The 1 st appellant argued his appeal on four grounds merging grounds 1, 2 and 3 then 4, 5 and 6 each separately.
25. The 2 nd appellant also merged grounds 1, 2 and 3 of his petition of appeal and argued grounds 4 and 5 each separately. The submissions by the appellants are almost word for word and so I will consider them as one. The respondent filed submissions in respect of each appellant. The submissions for the 1 st appellant were filed separately twice, perhaps by inadvertence.
26. The appellants submit that according to the evidence on record, the offence took place at night under difficult circumstances that could not have enabled the complainant to identify each of them as her assailant. That it was at night and dark and the complainant did not describe the nature of lighting that enabled her identify them nor did she describe her attackers to the police at the time of making her report. Each of them submits that he was not part of the people who robbed the complainant and raped her.
27. Each appellant submits that he was a victim of mistaken identity.
28. The appellants submit further that the complainant and PW 3 gave contradictory evidence regarding the time of the alleged offence with the complainant stating that it was 9.00 p.m. while PW 3 said that it was 1.00 a.m.
29. On the specific charge of robbery with violence, each of the appellants submits that the elements of the offence were not proved as there was no weapon produced in court to link either of them to the offence.
30. With respect to gang rape, each of the appellants submits that PW 2 was not the one who completed the P3 form for the complainant and there was no DNA analysis to determine who committed the offence upon the complainant.
31. The 1 st appellant submitted further that the complainant did not identify the phone that was recovered from his house as hers as she never provided the description of her phone. Further that the trial court failed to give him an opportunity to call his friend Alex who had left the phone in his house.
32. On their part, learned counsel for the respondent submits that the complaint was a forthright witness whose evidence had no inconsistecncies or contracditions as alleged in the appellants’ submissions and the trial court was correct to believe her. That in each case each of the appellants was identified by the complainant by way of recognition as he was well known to her prior to her encounter with them that night.
33. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellants by the trial court. He submitted that the prosecution had proved its case against each of the appellants beyond a reasonable doubt and that the trial court reached the correct verdict that they were guilty on the charges.
34. Learned counsel submits that the complainant positively identified each of the appellants by way of recognition as both were well known to her. That the complainant had a good opportunity and time to identify each of them right from outside County Club where was well lit there with electric lighting. Learned counsel cited the case of Anjononi & 2 others v Republic [1980] KECA 23 (KLR) where the Court of Appeal while considering the issue of identification said thus:
“Mr Barasa for the appellants argued as his main ground of appeal the question of identification. The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).
6.We consider that in the present case the recognition of the appellants by Wanyoni and Joice to whom they were previously well known personally, the first appellant also being related to them as their son-in-law, was made both possible and satisfactory in the two brightly-lit torches which two of the appellants kept flashing about in Wanyoni’s bedroom in such a manner that the possibility of any mistake was minimal. In addition, immediately after the robbers left, Wanyoni reported their names to the owner of the farm where he worked. He also later on the same night gave the names of the three appellants to the police as the robbers who had robbed him.
7.We are satisfied that there was no mistake as to the identity of the three appellants and they were properly found guilty of the offence with which they were charged in count 1.”
35. Learned counsel submits further that the identity of the appellants was corroborated by the discovery of the complainant’s phone in the house of the 1 st appellant.
36. Learned counsel submits that the charge of gand rape was equally proved against both appellants and that the complainant’s evidence was corroborated by the medical evidence tendered by PW 2.
37. Learned counsel submits that the sentence of death meted out upon the appellants for the offence of robbery with violence is mandatory.
38. I have considered the grounds in support of the appeal, submissions by the appellants and the respondent, and the judgment of the trial court. The issues upon which this appeal rests are 1) whether or not there was proper identification of the appellants as the complainant’s assailants and 2) whether, on the whole, the offences of robbery with violence under section 296(2) and gang rape contrary to section 10 SOA were proved against each of the appellants beyond a reasonable doubt.
39. The appellants contend that the offence of robbery with violence was not proved against them beyond a reasonable doubt. Section 296(2) of the Penal Code under which the appellants were charged in the first count was explained by the Court of Appeal in the case of Johana Ndungu v Republic [1996] KECA 187 (KLR) as follows:
“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
If the offender is armed with any dangerous or offensive weapon or instrument, or
If he is in company with one or more other person or persons, or
If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.
Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.
In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.
With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”
40. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2).
41. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR) ).
42. The present case is hinged on two elements of the offence, that the appellants were in company of one another that is, they were more than one; second that they used violence upon the complainant because first, one of them whom the complainant identified as the 1 st appellant assaulted her with a piece of wood while the 2 nd appellant hit her in the face and secondly that they committed sexual assault upon her which was also violence. The existence of any one of these elements was sufficient to prove the offence against the appellants.
43. Upon analyzing the evidence, the learned trial magistrate disbelieved the defences tendered by the appellants and found that the prosecution had proved the charges against them beyond a reasonable doubt and convicted them accordingly.
44. The learned trial magistrate found that the case primarily rested on the issue of identification of the appellants. The appellants and the respondents submit so too. The appeal has therefore to a great length dwelt on the issue of identification. It is true that identification was a key issue in the charges, as it is in every offence, but I do not think the case rested on identification of the appellants alone. The reason is simple that both appellants were well known to the complainant and they conceded as much. According to the complainant, she found the two of them at County Club where there was sufficient lighting. She spoke to the 1 st appellant to ferry her home in the presence of the 2 nd appellant. It is her evidence that what happened afterwards was by the two people. Under those circumstances, identification would not be central an issue however the protestations by the appellants.
45. For me, the key to the case lies in the ground of appeal that the evidence relied upon by the learned trial magistrate was not credible and therefore the case could not be said to have been proved beyond a reasonable doubt. I am aware that an appellate court should be slow to disturb the findings of the credibility of a witness whose assessment is better left to the determination of the trial court. However, it is also true that where the trial court failed to take into account a material fact or took into account a fact that was not material to the case then the appellate court can interfere with the findings.
46. In this case the trial court did not give any consideration to the issue of the credibility of the prosecution witness evidence. For instance, there is an issue that may seem minute but it is important to the determination of the credibility of the complainant’s evidence. This is the time that the incident is alleged to have happened. This issue has to be considered in light of all the evidence tendered by both the prosecution and the defence.
47. The complainant testified that the incident happened at around 9.00 p.m. in the market grounds. However, the investigating officer said that the complainant reported to her that the incident happened at around 1.00 a.m. This time difference is quite material to determining whether the complainant was an honest and truthful witness or she was to be doubted in some respects. If so, were those doubts material to the proof of the charges?
48. The complainant having told the investigating officer, shortly after her unfortunate encounter the previous night that the incident happened at 1.00 a.m. why would she change for the same to have been 9.00 p.m. during her testimony in court? In court she said that she was from seeing her employer to collect her dues for the day. She did not say who her said employer was and where exactly she was coming from. She did not also tell the investigating officer where she was from that night at 1.00 a.m. Obviously it would have been hard for her to convince the investigating officer that she was from seeing her employer that late in the night. Her own evidence that she met the appellants outside County Club coupled with the evidence of the investigating officer that she had said it was 1.00 a.m. leads me to believe that it was more probable than not that she was coming from the club and she sought the services of the 1 st appellant who was well known to her and operates from there to ferry her home.
49. She said in court that the 2 nd appellant boarded the motor cycle and sat behind her after she had boarded. The investigating officer on her part said the complainant told her that there was another passenger on the motor cycle and the 1 st appellant told her that the passenger was also going to Kimuri. In either case, the complainant does not seem to have questioned why the 2 nd appellant was also accompanying them. One reason that would have made her not raise an issue was because the other passenger, the 2 nd appellant was well known to her from childhood. The 2 nd appellant’s mother said that in fact, they used to stay on the same plot in Kerugoya town. So the complainant had no reason to worry about the 2 nd appellant accompanying them.
50. According to the complainant, the series of events that took place on the way home would seem like they had been pre-arranged by the appellants. First, the rider of the motor cycle, the 1 st appellant, detoured to Kerugoya second-hand clothes market. The the 2 nd appellant on his part held her mouth and blocked her eyes, meaning that he did not want her to see the different direction the motor cycle had taken nor for her scream that she was being taken to a different direction from the one she wanted. Those can only be pre-arranged and coordinated actions by the two appellants. It was at the market that each of them assaulted her, the 1 st appellant with a piece of wood on the leg and the 2 nd appellant on the face.
51. Evidence that she was injured in these two places was corroborated by the medical evidence of PW 2 that the complainant had bruises on the right side of her face and on the thigh. The 2 nd appellant submits that there was no corroborating evidence that she was injured on the leg. I am satisfied that evidence of bruises on the thigh corroborates the complainant’s evidence that she was hit and was injured on the leg.
52. The complainant’s evidence that the 2 nd appellant had sexual intercourse with her after they ordered her to remove her clothes is explicit. However, for the 1 st appellant, she was not so explicit. She only said that the 2 nd appellant was the one who penetrated her first and then that after raping her they started fighting and after a while they ran off. The 1 st appellant then came back holding her clothes that he has taken.
53. However, the fact that the 1 st appellant might not have had direct sexual intercourse with her does not absolve him of the offence of gang rape since the law, section 10 SOA provides that the same is committed inter alia by a person who, with common intention is in company of another, or others who commit the offence of rape. In this case, the complainant’s evidence was that the 1 st appellant as the rider of the motor cycle was the one who detoured from the route to the complainant’s residence, he assaulted her and participated in ordering her to remove her trouser and he had taken her clothes. Those actions by the 1 st accused person show that he had a common intention with the 2 nd appellant who the complainant was explicit that he penetrated her genital organ. He was thus acting in concert with him to fulfill the common intention of raping her.
54. There was medical evidence tendered by PW 2 that there was penetration of the complainant’s genital organ. Even without the medical evidence, I am still satisfied from the complainant’s sole evidence that the gang rape was committed upon her.
55. I find no reason to doubt the complainant on that aspect of her evidence. I am satisfied that the learned trial magistrate was correct in his finding on that charge that the same was proved beyond a reasonable doubt and rhe conviction is upheld.
56. Having found so, I will go back to the charge of robbery with violence. The complainant testified that the appellants stole her money KShs 5,200/ and a mobile phone and that the mobile phone was recovered in the 1 st appellant’s house.
57. Proof of theft is key in a charge of robbery aggravated by the circumstances under which it was committed. While considering this element in the case of Samuel Kariuki Wanjiku v Republic [2019] KEHC 5343 (KLR) the High Court, considering a case almost similar to the present one paused several questions that were not answered by the prosecution in proving theft thus:
“Theft is the key aid proving ingredient in robbery cases, whether simple robbery or aggravated robbery with violence. Apart from the complainant’s statement in evidence that the assailants had stolen his salary money Ksh.5000/= - which is not clarified as being part or all of his salary - and his Nokia phone, no other evidence was adduced, as urged by the Counsel for the appellant, that he had on him the said money and mobile phone to support the charge of theft…
The prosecution was, with respect, casual despite the very serious charge of robbery with violence that the appellant faced. If theft or stealing is not proved, the offence of robbery, whether simple or robbery with violence contrary to section 296 (1) or (2) of the Penal Code, respectively, cannot be proved. I do not find that cogent evidence was produced as to the alleged fact of the complainant having had in his possession of money and mobile phone, which the complainant and his alleged colleagues could have stolen.”
58. This decision of the High Court underscores the importance of the prosecution tendering cogent evidence to prove
[...truncated]
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E066 OF 2023 AND E020 OF 2025 (CONSOLIDATED)
BENJAMIN MUNENE………………………....………………………..1 ST APPELLANT
FRANCIS GICHIMO ..........................................................................2 ND APPELLANT
VERSUS
REPUBLIC……………………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction and sentence delivered on 13 th December 2023 by Hon. Alex Ithuku, Chief Magistrate in Kerugoya Magistrates Court Criminal Case No. E132 of 2022)
J U D G M E N T
1. The two appellants herein filed separate appeals, each of his own. The files were therefore not consolidated but since the appeals arise from the same trial in the magistrate’s court, I will deliver a consolidated judgment in this appeal
2. The appellants were charged and convicted on two counts as follows:
i. Count 1: Robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63) Laws of Kenya that on 18 th February 2023 at Kerugoya Township within Kirinyaga County, jointly robbed J.W.K of her phone, make Itel Button, black in colour valued at KShs 1,200/= and cash KShs 5,200/= and immediately before the time of such robbery hit the said J.W.K. on the face using a bar of timber.
ii. Count 2: Gang Rape contrary to section 10 of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on 18 th February 2023 at Kerugoya Township within Kirinyaga County the two in association with each other intentionally and unlawfully caused their penises to penetrate the vagina of J.W.K. without her consent.
iii. Alternative charge to Gang Rape
Indecent act with an adult contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date, place and time as in the principal charge of gang rape, the two in association with each other intentionally and unlawfully touched the vagina, buttocks and breasts of J.W.K without her consent.
3. They were sentenced to suffer death on the charge of robbery with violence while the learned trial magistrate suspended sentencing on the charge of gang rape.
4. The appellants were aggrieved by the convictions and sentences and preferred their separate appeals on 27 th December 2023. Francis Gichomo Muthoni’s appeal was No. E065 of 2023 while that of Benjamin Munene was No. E066 of 2023. The appeals bore the same grounds that:
i. the learned trial magistrate erred in law and facts by failing to consider that the evidence produced in court was not credible, was full of contradictions and inconsistencies and the case was not proved beyond a reasonable doubt.
ii. the learned trial magistrate erred in law and facts by failing to consider that no evidence was adduced to prove the charge of gang rape.
iii. the learned trial magistrate erred in law and facts by failing to consider that there was no proof of ownership of the mobile phone as no receipt was produced.
iv. the learned trial magistrate erred in law and facts by passing a hash and excessive sentence.
v. the learned trial magistrate erred in law and facts by failing to consider the appellant’s defence and mitigation.
5. The appellants therefore pray that the appeal be allowed in its entirety.
6. There appears to have been some mix-up leading to Francis Gichimo filing a second appeal No. E020 of 2025 on grounds that:
i. The learned trial magistrate erred in both law and fact in failing to appreciate that the alleged victim in the case clearly demonstrated an incredibly doubtful integrity.
ii. The learned trial magistrate erred in both law and fact in failing to appreciate that the critical elements of robbery with violence were not proved to the required standard in law thereby occasioning a serious miscarriage of justice.
iii. The learned trial magistrate erred in both law and fact in failing to consider the plausible defence by the appellant which was not contested and/or unproved by the prosecution hence it still stands, clearly demonstrating that the case was a frame-up to curtail his success due to envy.
iv. The learned trial magistrate erred in both law and fact by imposing a mandatory indefinite sentence.
v. This court considers the provisions of section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya to be factored in his sentence.
7. In view of the mix-up Benjamin Munene’s appeal now takes the first position and he is thus the 1 st appellant while Francis Gichimo’s appeal takes the second position and he becomes the 2 nd appellant.
8. The appeal was disposed of by way of written submissions filed by the appellants and learned counsel for the respondent.
9. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 .
10. The prosecution called three witnesses to support its case. PW 1, JWK was the complainant. PW 2’s name was not recorded although the P3 form indicates his name as Macharia. He was a clinical officer based at Kerugoya County Referral hospital. He examined the complainant. PW 3, PC Milka Ndung’u from Kerugoya police station was the investigating officer.
11. Each of the appellants gave sworn evidence in defence and denied that he committed the offence. The 2 nd appellant called one witness, DW 3, Miriam Muthoni, his mother.
12. PW 1 testified that on the night of 18 th February 2023 at 9.00 p.m. she had gone to collect her pay for a casual job she had done that day from her employer whom she had not found when on her way home she met the 1 st appellant, a “boda boda” operator well known to her as Osama, outside County Club. She asked the 1 st appellant to ferry her home. He was company of the 2 nd appellant, also well known to her and who was also a passenger on the same motorcycle. Along the way, the 1 st appellant detoured from the route and rode towards the market where they both assaulted her, ordered her to undress and engaged in non-consensual sexual intercourse with her. The 2 nd appellant also took KShs 5,200/= from her and the two fought at the scene and then took off leaving the motor cycle behind. The 1 st appellant came back to her with her mobile phone. He had also taken her clothes and she dressed. She then ran away shouting, the 1 st appellant’s name Osama, by which he is commonly known in the area. He ran after her while with her phone.
13. The complainant reported the incident at Kerugoya police station the following day. She gave out the appellants’ names. The 1 st appellant was arrested the same day. They visited the 1 st appellant’s house and her phone, Itel was recovered from there. It was produced in evidence as Exhibit 4.
14. The complainant was medically attended to at the Kerugoya County Referral Hospital.
15. PW 2 said that he completed the complainant’s P3 form relying on the treatment card that was filled by Dr. Ann who also completed a Post Rape Care form for the complainant. PW 2 produced the treatment notes, PRC form and P3 form as exhibits. His opinion was that the complainant’s genital organ had been penetrated.
16. PW 3 testified that the complainant reported to her the incident on 19 th February 2023. She told her that she was going home at 1.00 a.m. when the incident happened. PW 3 arrested the 1 st appellant outside Kerugoya Law Courts grounds where he was attending another case as she had previously arrested him. He took them to his home where they recovered the stolen phone. The 2 nd appellant was arrested by the area chief. Both of the appellants bore bruises and they were taken to hospital.
17. In defence, the 1 st appellant said he operates a boda boda within Kerugoya. He denied that he knew anything about the case. In cross-examination he conceded that he is commonly known by the name of Osama in the streets of Kerugoya by other boda boda riders. He said that the phone was recovered from his house but it belonged to his friend called Alex but the complainant claimed that it was hers. He denied that he met the complainant on the material night. He said that he usually sees the 2 nd appellant in town.
18. The 2 nd appellant testified that on the material night he did not go to Kerugoya town but was arrested the following day while in town where he has a rental house. He said that the complainant was known to her and his family for long and that she works in town. He also said that the 1 st appellant is known to him as a boda boda rider and he works in town as such.
19. DW 3, Miriam Muthoni is the 2 nd appellant’s mother. She testified that the complainant is her friend and they used to live with her son on the same plot. She said that on the material night the 2 nd appellant was in at Kaitheri at her home and spent the night in his brother’s house. He had fought with his friends in January 2023 and he had been hospitalized. He went home on 18 th February 2023 from Kerugoya town where he lives.
20. Upon hearing the parties, the learned trial magistrate found that the prosecution had proved its case against the appellants beyond a reasonable doubt on both counts. He dismissed the appellants’ defences and convicted them accordingly.
21. In arriving at his decision, the learned trial magistrate found that the case largely turned on the issue of identification of the assailants. That the two appellants were well known to the complainant and she readily identified them. The learned trial magistrate was satisfied that the mandatory guidelines for evaluating the reliability of eyewitness identification evidence as set out R v Turnbull [1977] QB 224 had been satisfied. He did not however set out the said factors. Further, that the fact that the fact that the complainant’s mobile phone was found in the house of the 1 st appellant corroborated her evidence that indeed he had stolen it from her.
22. On the charge of robbery with violence, the learned trial magistrate was satisfied that the ingredients of the offence as set out under section 296(2) of the Penal Code had been proved by the prosecution. He also found that the appellants had stolen the complainant’s money and mobile phone. That they were more than one and that they had assaulted her in the course of the robbery.
23. On the charge of gang rape the learned trial magistrate was satisfied that the ingredients of the offence as set out under section 10 of the SOA had been proved to the required standard. He found that both appellants had engaged in the act of penetration of the complainant’s genital organ, starting with the 2 nd appellant and then the 1 st appellant who had removed her blouse.
24. The 1 st appellant argued his appeal on four grounds merging grounds 1, 2 and 3 then 4, 5 and 6 each separately.
25. The 2 nd appellant also merged grounds 1, 2 and 3 of his petition of appeal and argued grounds 4 and 5 each separately. The submissions by the appellants are almost word for word and so I will consider them as one. The respondent filed submissions in respect of each appellant. The submissions for the 1 st appellant were filed separately twice, perhaps by inadvertence.
26. The appellants submit that according to the evidence on record, the offence took place at night under difficult circumstances that could not have enabled the complainant to identify each of them as her assailant. That it was at night and dark and the complainant did not describe the nature of lighting that enabled her identify them nor did she describe her attackers to the police at the time of making her report. Each of them submits that he was not part of the people who robbed the complainant and raped her.
27. Each appellant submits that he was a victim of mistaken identity.
28. The appellants submit further that the complainant and PW 3 gave contradictory evidence regarding the time of the alleged offence with the complainant stating that it was 9.00 p.m. while PW 3 said that it was 1.00 a.m.
29. On the specific charge of robbery with violence, each of the appellants submits that the elements of the offence were not proved as there was no weapon produced in court to link either of them to the offence.
30. With respect to gang rape, each of the appellants submits that PW 2 was not the one who completed the P3 form for the complainant and there was no DNA analysis to determine who committed the offence upon the complainant.
31. The 1 st appellant submitted further that the complainant did not identify the phone that was recovered from his house as hers as she never provided the description of her phone. Further that the trial court failed to give him an opportunity to call his friend Alex who had left the phone in his house.
32. On their part, learned counsel for the respondent submits that the complaint was a forthright witness whose evidence had no inconsistecncies or contracditions as alleged in the appellants’ submissions and the trial court was correct to believe her. That in each case each of the appellants was identified by the complainant by way of recognition as he was well known to her prior to her encounter with them that night.
33. Learned counsel for the respondent urged the court to confirm the conviction and sentence of the appellants by the trial court. He submitted that the prosecution had proved its case against each of the appellants beyond a reasonable doubt and that the trial court reached the correct verdict that they were guilty on the charges.
34. Learned counsel submits that the complainant positively identified each of the appellants by way of recognition as both were well known to her. That the complainant had a good opportunity and time to identify each of them right from outside County Club where was well lit there with electric lighting. Learned counsel cited the case of Anjononi & 2 others v Republic [1980] KECA 23 (KLR) where the Court of Appeal while considering the issue of identification said thus:
“Mr Barasa for the appellants argued as his main ground of appeal the question of identification. The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).
6.We consider that in the present case the recognition of the appellants by Wanyoni and Joice to whom they were previously well known personally, the first appellant also being related to them as their son-in-law, was made both possible and satisfactory in the two brightly-lit torches which two of the appellants kept flashing about in Wanyoni’s bedroom in such a manner that the possibility of any mistake was minimal. In addition, immediately after the robbers left, Wanyoni reported their names to the owner of the farm where he worked. He also later on the same night gave the names of the three appellants to the police as the robbers who had robbed him.
7.We are satisfied that there was no mistake as to the identity of the three appellants and they were properly found guilty of the offence with which they were charged in count 1.”
35. Learned counsel submits further that the identity of the appellants was corroborated by the discovery of the complainant’s phone in the house of the 1 st appellant.
36. Learned counsel submits that the charge of gand rape was equally proved against both appellants and that the complainant’s evidence was corroborated by the medical evidence tendered by PW 2.
37. Learned counsel submits that the sentence of death meted out upon the appellants for the offence of robbery with violence is mandatory.
38. I have considered the grounds in support of the appeal, submissions by the appellants and the respondent, and the judgment of the trial court. The issues upon which this appeal rests are 1) whether or not there was proper identification of the appellants as the complainant’s assailants and 2) whether, on the whole, the offences of robbery with violence under section 296(2) and gang rape contrary to section 10 SOA were proved against each of the appellants beyond a reasonable doubt.
39. The appellants contend that the offence of robbery with violence was not proved against them beyond a reasonable doubt. Section 296(2) of the Penal Code under which the appellants were charged in the first count was explained by the Court of Appeal in the case of Johana Ndungu v Republic [1996] KECA 187 (KLR) as follows:
“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the sub-section in conjunction with s.295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or property at or immediately before or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in s.296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section:
If the offender is armed with any dangerous or offensive weapon or instrument, or
If he is in company with one or more other person or persons, or
If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.
Analysing the first set of circumstances the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.
In the same manner in the second set of circumstances if it is shown and accepted by court that at the time of robbery the offender is in company with one or more person or persons then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two set of circumstances.
With regard to the third set of circumstances there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats, strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”
40. As provided for under section 295 PC and explained in the decision above, in an offence of robbery, there is first the element of stealing or theft then the one of violence, then circumstances aggravating the violence under which the theft is committed which bring in the punishment of death under section 296(2).
41. It has been held that the elements of the offence under section 296(2) PC are three in number and they are to be read not conjunctively, but disjunctively. Proof of one element is sufficient to found an offence of robbery under section 296(2). (see Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR) ).
42. The present case is hinged on two elements of the offence, that the appellants were in company of one another that is, they were more than one; second that they used violence upon the complainant because first, one of them whom the complainant identified as the 1 st appellant assaulted her with a piece of wood while the 2 nd appellant hit her in the face and secondly that they committed sexual assault upon her which was also violence. The existence of any one of these elements was sufficient to prove the offence against the appellants.
43. Upon analyzing the evidence, the learned trial magistrate disbelieved the defences tendered by the appellants and found that the prosecution had proved the charges against them beyond a reasonable doubt and convicted them accordingly.
44. The learned trial magistrate found that the case primarily rested on the issue of identification of the appellants. The appellants and the respondents submit so too. The appeal has therefore to a great length dwelt on the issue of identification. It is true that identification was a key issue in the charges, as it is in every offence, but I do not think the case rested on identification of the appellants alone. The reason is simple that both appellants were well known to the complainant and they conceded as much. According to the complainant, she found the two of them at County Club where there was sufficient lighting. She spoke to the 1 st appellant to ferry her home in the presence of the 2 nd appellant. It is her evidence that what happened afterwards was by the two people. Under those circumstances, identification would not be central an issue however the protestations by the appellants.
45. For me, the key to the case lies in the ground of appeal that the evidence relied upon by the learned trial magistrate was not credible and therefore the case could not be said to have been proved beyond a reasonable doubt. I am aware that an appellate court should be slow to disturb the findings of the credibility of a witness whose assessment is better left to the determination of the trial court. However, it is also true that where the trial court failed to take into account a material fact or took into account a fact that was not material to the case then the appellate court can interfere with the findings.
46. In this case the trial court did not give any consideration to the issue of the credibility of the prosecution witness evidence. For instance, there is an issue that may seem minute but it is important to the determination of the credibility of the complainant’s evidence. This is the time that the incident is alleged to have happened. This issue has to be considered in light of all the evidence tendered by both the prosecution and the defence.
47. The complainant testified that the incident happened at around 9.00 p.m. in the market grounds. However, the investigating officer said that the complainant reported to her that the incident happened at around 1.00 a.m. This time difference is quite material to determining whether the complainant was an honest and truthful witness or she was to be doubted in some respects. If so, were those doubts material to the proof of the charges?
48. The complainant having told the investigating officer, shortly after her unfortunate encounter the previous night that the incident happened at 1.00 a.m. why would she change for the same to have been 9.00 p.m. during her testimony in court? In court she said that she was from seeing her employer to collect her dues for the day. She did not say who her said employer was and where exactly she was coming from. She did not also tell the investigating officer where she was from that night at 1.00 a.m. Obviously it would have been hard for her to convince the investigating officer that she was from seeing her employer that late in the night. Her own evidence that she met the appellants outside County Club coupled with the evidence of the investigating officer that she had said it was 1.00 a.m. leads me to believe that it was more probable than not that she was coming from the club and she sought the services of the 1 st appellant who was well known to her and operates from there to ferry her home.
49. She said in court that the 2 nd appellant boarded the motor cycle and sat behind her after she had boarded. The investigating officer on her part said the complainant told her that there was another passenger on the motor cycle and the 1 st appellant told her that the passenger was also going to Kimuri. In either case, the complainant does not seem to have questioned why the 2 nd appellant was also accompanying them. One reason that would have made her not raise an issue was because the other passenger, the 2 nd appellant was well known to her from childhood. The 2 nd appellant’s mother said that in fact, they used to stay on the same plot in Kerugoya town. So the complainant had no reason to worry about the 2 nd appellant accompanying them.
50. According to the complainant, the series of events that took place on the way home would seem like they had been pre-arranged by the appellants. First, the rider of the motor cycle, the 1 st appellant, detoured to Kerugoya second-hand clothes market. The the 2 nd appellant on his part held her mouth and blocked her eyes, meaning that he did not want her to see the different direction the motor cycle had taken nor for her scream that she was being taken to a different direction from the one she wanted. Those can only be pre-arranged and coordinated actions by the two appellants. It was at the market that each of them assaulted her, the 1 st appellant with a piece of wood on the leg and the 2 nd appellant on the face.
51. Evidence that she was injured in these two places was corroborated by the medical evidence of PW 2 that the complainant had bruises on the right side of her face and on the thigh. The 2 nd appellant submits that there was no corroborating evidence that she was injured on the leg. I am satisfied that evidence of bruises on the thigh corroborates the complainant’s evidence that she was hit and was injured on the leg.
52. The complainant’s evidence that the 2 nd appellant had sexual intercourse with her after they ordered her to remove her clothes is explicit. However, for the 1 st appellant, she was not so explicit. She only said that the 2 nd appellant was the one who penetrated her first and then that after raping her they started fighting and after a while they ran off. The 1 st appellant then came back holding her clothes that he has taken.
53. However, the fact that the 1 st appellant might not have had direct sexual intercourse with her does not absolve him of the offence of gang rape since the law, section 10 SOA provides that the same is committed inter alia by a person who, with common intention is in company of another, or others who commit the offence of rape. In this case, the complainant’s evidence was that the 1 st appellant as the rider of the motor cycle was the one who detoured from the route to the complainant’s residence, he assaulted her and participated in ordering her to remove her trouser and he had taken her clothes. Those actions by the 1 st accused person show that he had a common intention with the 2 nd appellant who the complainant was explicit that he penetrated her genital organ. He was thus acting in concert with him to fulfill the common intention of raping her.
54. There was medical evidence tendered by PW 2 that there was penetration of the complainant’s genital organ. Even without the medical evidence, I am still satisfied from the complainant’s sole evidence that the gang rape was committed upon her.
55. I find no reason to doubt the complainant on that aspect of her evidence. I am satisfied that the learned trial magistrate was correct in his finding on that charge that the same was proved beyond a reasonable doubt and rhe conviction is upheld.
56. Having found so, I will go back to the charge of robbery with violence. The complainant testified that the appellants stole her money KShs 5,200/ and a mobile phone and that the mobile phone was recovered in the 1 st appellant’s house.
57. Proof of theft is key in a charge of robbery aggravated by the circumstances under which it was committed. While considering this element in the case of Samuel Kariuki Wanjiku v Republic [2019] KEHC 5343 (KLR) the High Court, considering a case almost similar to the present one paused several questions that were not answered by the prosecution in proving theft thus:
“Theft is the key aid proving ingredient in robbery cases, whether simple robbery or aggravated robbery with violence. Apart from the complainant’s statement in evidence that the assailants had stolen his salary money Ksh.5000/= - which is not clarified as being part or all of his salary - and his Nokia phone, no other evidence was adduced, as urged by the Counsel for the appellant, that he had on him the said money and mobile phone to support the charge of theft…
The prosecution was, with respect, casual despite the very serious charge of robbery with violence that the appellant faced. If theft or stealing is not proved, the offence of robbery, whether simple or robbery with violence contrary to section 296 (1) or (2) of the Penal Code, respectively, cannot be proved. I do not find that cogent evidence was produced as to the alleged fact of the complainant having had in his possession of money and mobile phone, which the complainant and his alleged colleagues could have stolen.”
58. This decision of the High Court underscores the importance of the prosecution tendering cogent evidence to prove
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