1. John Kennedy Osore, the appellant herein, was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. The particulars were that on the 29th day of June 2020, at Kakrao Centre, in Migori County, jointly with another person, not before the court, robbed G.O.O of a Dell laptop, two mobile phones, a power bank, spectacles, and Kshs: 1,200/= and a Bluetooth speaker, all valued at Kshs. 130,000/=, and immediately after the time of the said robbery, beat the said G.O.O.
3. The appellant was also convicted of the offence of gang rape contrary to section 10 of the Sexual Offences Act.
4. The particulars were that on the 29th day of June 2020, at Kakrao Centre, in Migori County, jointly with another person, not before the court, intentionally caused his penis to penetrate the vagina of G.O.O. without her consent.
5. The appellant was sentenced to serve 25 years' imprisonment in count one and in count two to serve seven years’ imprisonment. The sentence was ordered to run consecutively, and He was aggrieved and filed this appeal. He raised the following grounds of appeal:
a) The trial court erred in law and fact by not complying with Article 50(2) (g) and (h) of the Kenyan Constitution 2010.
b) The trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law.
6. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel.
7. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32
8. Article 50(2) (g) and (h) of the Constitution of Kenya provides as follows:
(2) Every accused person has the right to a fair trial, which
includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
9. After reviewing the record, I note that Mr Marvin Odero represented the appellant, advocate. He joined the case after two witnesses had already testified and was free to request the recall of any witness for additional cross-examination. Therefore, the appellant cannot claim that the constitutional provisions on legal representation were violated.
10. The trial court based the appellant's conviction on the complainant's testimony, where she identified the clothing worn by one of her attackers. She explained that she was instructed to cover her face with a blanket and acknowledged that there was no lighting in the room where she was assaulted and raped. Given the poor lighting conditions, the court must ensure that the identification made is accurate and not mistaken. Lord Widgery C.J. emphasized this in R. vs Turnbull and Others [1976] 3 All ER 549, stating the importance of scrutinising eyewitness identification under such circumstances. He went on to say:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
11. Although the complainant testified that she recognized the clothes one of the attackers was wearing, she did not specify when she made this identification or what helped her do so, since she provided no details on how she identified them. This was very weak evidence that could not reliably convict the appellant.
12. The other evidence by the complainant that may have influenced the trial magistrate is the purported recognition by voice. The Court of Appeal in the case of Simeon Mbelle vs Republic [1982] IKAR 578. The Court said:
In relation to the identification by voice, one it would obviously be necessary to ensure:
(a) That it was the accused person’s voice;
(b) That the witness was familiar with it and they recognized it and
(c) That the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it.
13. The evidence of voice recognition by the complainant does not pass the test that was prescribed in the Mbelle case(supra).
14. In the complainant’s testimony, she provided details about the appellant’s behaviour, likely expecting the court to consider them. She mentioned that when she called the appellant at around 3 a.m., he was taking time to respond. He was their gardener. It is reasonable to assume that being awakened from sleep can naturally delay recognition of the caller and alertness. She also noted that he was hesitant to call her grandmother for help. His explanation at the time, and at the trial, did not seem unusual. This was merely suspicion, not supported by logical reasoning. The Court of Appeal in Sawe vs Republic [2003] KLR 354 stated the following:
Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.
15. After thoroughly reviewing the evidence, I conclude there is not enough to convict the appellant. The convictions on both counts are hereby quashed, and the sentences are set aside. He is to be released unless detained for lawful reasons.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars were that on the 29th day of June 2020, at Kakrao Centre, in Migori County, jointly with another person, not before the court, robbed G.O.O of a Dell laptop, two mobile phones, a power bank, spectacles, and Kshs: 1,200/= and a Bluetooth speaker, all valued at Kshs. 130,000/=, and immediately after the time of the said robbery, beat the said G.O.O.
3. The appellant was also convicted of the offence of gang rape contrary to section 10 of the Sexual Offences Act.
4. The particulars were that on the 29th day of June 2020, at Kakrao Centre, in Migori County, jointly with another person, not before the court, intentionally caused his penis to penetrate the vagina of G.O.O. without her consent.
5. The appellant was sentenced to serve 25 years' imprisonment in count one and in count two to serve seven years’ imprisonment. The sentence was ordered to run consecutively, and He was aggrieved and filed this appeal. He raised the following grounds of appeal:
a) The trial court erred in law and fact by not complying with Article 50(2) (g) and (h) of the Kenyan Constitution 2010.
b) The trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law.
6. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel.
7. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32
8. Article 50(2) (g) and (h) of the Constitution of Kenya provides as follows:
(2) Every accused person has the right to a fair trial, which
includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
9. After reviewing the record, I note that Mr Marvin Odero represented the appellant, advocate. He joined the case after two witnesses had already testified and was free to request the recall of any witness for additional cross-examination. Therefore, the appellant cannot claim that the constitutional provisions on legal representation were violated.
10. The trial court based the appellant's conviction on the complainant's testimony, where she identified the clothing worn by one of her attackers. She explained that she was instructed to cover her face with a blanket and acknowledged that there was no lighting in the room where she was assaulted and raped. Given the poor lighting conditions, the court must ensure that the identification made is accurate and not mistaken. Lord Widgery C.J. emphasized this in R. vs Turnbull and Others [1976] 3 All ER 549, stating the importance of scrutinising eyewitness identification under such circumstances. He went on to say:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
11. Although the complainant testified that she recognized the clothes one of the attackers was wearing, she did not specify when she made this identification or what helped her do so, since she provided no details on how she identified them. This was very weak evidence that could not reliably convict the appellant.
12. The other evidence by the complainant that may have influenced the trial magistrate is the purported recognition by voice. The Court of Appeal in the case of Simeon Mbelle vs Republic [1982] IKAR 578. The Court said:
In relation to the identification by voice, one it would obviously be necessary to ensure:
(a) That it was the accused person’s voice;
(b) That the witness was familiar with it and they recognized it and
(c) That the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it.
13. The evidence of voice recognition by the complainant does not pass the test that was prescribed in the Mbelle case(supra).
14. In the complainant’s testimony, she provided details about the appellant’s behaviour, likely expecting the court to consider them. She mentioned that when she called the appellant at around 3 a.m., he was taking time to respond. He was their gardener. It is reasonable to assume that being awakened from sleep can naturally delay recognition of the caller and alertness. She also noted that he was hesitant to call her grandmother for help. His explanation at the time, and at the trial, did not seem unusual. This was merely suspicion, not supported by logical reasoning. The Court of Appeal in Sawe vs Republic [2003] KLR 354 stated the following:
Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.
15. After thoroughly reviewing the evidence, I conclude there is not enough to convict the appellant. The convictions on both counts are hereby quashed, and the sentences are set aside. He is to be released unless detained for lawful reasons.
Delivered and signed at Migori, this 23rd day of February 2026