The Appellant was charged with the offence of Robbery with Violence Contrary to Section 296(1) as read with Section 296(2) of the Penal Code in Count 1
Particulars of the offence were that on the night of 25th September 2019 at Riamasagara village within Kisii South Sub-County in Kisii County being armed with a knife robbed D.N.O of one mobile phone make Nokia 6.1 S/No 358550080727961 and cash Kshs. 2500/= all valued at Kshs. 30,000/= and immediately before the time of such robbery threatened to use actual violence against the said D.N.O.
In count 2 the Appellant was charged with the offence of rape contrary to Section 3 of the Sexual Offences Act No. 3 of 2006
The particulars were that on the night of 25th September 2025 at Riamasagara village within Kisii South Sub-County in Kisii County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of D. N O. by use of threats and without her consent.
In the alternative the Appellant was charged with the offence od indecent act with an adult contrary to Section 11A of the Sexual Offences Act No. 3 of 2006.
Upon consideration of the evidence of 5 prosecution witnesses and weighing the same against the Appellant’s sworn statement the Trial Magistrate found the Appellant guilty and convicted him in both counts. He was subsequently sentenced to serve 30 years imprisonment in count 1 and 10 years imprisonment in count 2 to run concurrently.
The Appellant was aggrieved with the conviction and sentence and he preferred the appeal herein vide Memorandum of Appeal filed on 9t February 2024 on the following grounds:
1. THAT the Learned Trial Magistrate erred in both law and facts when seemingly based the conviction on purported allegation yet the same was extremely doubtful
2. THAT the Learned Trial Magistrate erred both in law and facts when maliciously based the conviction on purported allegations of identification by recognition and failed to consider that the evidence in the first report did not give description of the attacker to the report that was made at the police station.
3. THAT the Learned Trial Magistrate erred both in law and facts when seemingly ignored the Appellant’s defense without reasons yet the same was remarkedly comprehensive in casting doubt to the strength of the prosecution’s case.
4. THAT the Learned Trial Magistrate erred both in law and facts when failed to note that no investigations were carried out by the prosecution, and failed in law by not analyzing the whole prosecution evidence as adduced thus occasioning a miscarriage of justice.
5. THAT the Learned Trial Magistrate erred both in law and facts by basing his conviction on evidence that was insufficient that could have supported the conviction based among the Appellant while the evidence in support of the same was not watertight and could not be used as a basis for a safe conviction.
6. THAT the Learned Trial Magistrate erred both in law and facts in passing the judgment, on matters not proved before him.
7. THAT the Learned Trial Magistrate erred both in law and facts to convict the Appellant without considering that the prosecution case was not proved beyond reasonable doubts to warrant conviction and sentence against the Appellant.
REASONS WHEREFORE the Appellant prayed that:
a. The appeal be allowed, conviction be quashed and sentence set aside
b. The Appellant be set free
The Prosecution’s case was that PW1 Damaris Nyanchama the Complainant alighted from a matatu at 10.00pm on 25.9.2019 having travelled from Nakuru towards Rioma. That the accused who was a rider approached her and asked whether she was going to Suneka. That when she confirmed they proceeded to petrol station and he refilled. The rider asked for fare and she gave Kshs. 100. That as they proceeded towards Suneka the rider told her he was dropping vegetables at his home. That when she asked him to drop her, he told her it was not far. That as they proceeded, she took her phone to call my dad the rider stopped and searched her pockets. That she felt something cold and she saw the rider had a knife. That the rider took her phone and everything she had in her bag and switched off her phone while demanding for money. He managed to get Kshs. 2,500 from my bag and also took ATM card and credit card and demanded the pin. He switched on my phone and asked for Mpesa pin and checked the balance but there was no money. He left it and raped the Complainant in a bush at Riamasagara. That the Complainant asked whether he had condom. The Complainant said she was able to see him using light from the phone. That after the act the rider offered to drop her but he refused to release her phone. He dropped her on the road and she walked along the road where she met another rider who took her to where my dad was. That they proceeded home and reported at Gesonso police station. That they went back to the scene and found ATM card, pant and other documents but did not find her phone. PW1 proceeded to hospital and she was treated and P3 form dated 29.9.2019duly filled. PW1 said that she booked her report and recorded her statement. That after one week her phone was traced and the Appellant was arrested and she was able to identify him. PW1 identified her Nokia C1 phone in court as PMFI 2. She said she also lost Kshs. 2,500. PW1 identified the Appellant in court as the one who robbed and raped.
In cross examination PW1 said that she arrived in Kisii at 10.00pm and found the Appellant next to smart line office. She said she did not take note of motor cycle number but only identified the rider then. She said she did not know the rider before. She said they did not reach where the rider’s wife was and he did not drop any vegetables. That instead he turned against her and took her phone which was later recovered. PW1 said she reported a case of rider who offered to take me home and that it was the Appellant. That he raped her without protection. She said the Appellant was found in possession of her phone. She said she did not know Benard. Or others who used her phone. She said that she was able to identify the Appellant in identification parade. She said it is not easy to have a person with exact similarities. She said she saw the Appellant at the time of act and marked his face. PW1 said she could not tell what was the Appellant’s position in parade.
PW2 David Ogega. Testified that he came from Suneka and he was a retired nursing officer.
That on 25.9.2019 at 11.00pm he was waiting for his daughter who was coming from Nakuru. He said the daughter is called Damaris Nyanchama. That by 10.30pm she told him they were approaching Kisii and he left home for Suneka. That they were in touch but at 11.00pm her phone went off. Later she appeared on motor cycle and he was told to pay. PW2’s daughter told him that a rider robbed her and she was raped and her phone and Kshs. 2,500 was stolen. PW2 took the Complainant to Gesonso police station and the following day they recorded statements and proceeded to hospital. He said the Complainant’s phone was tracked and the person in possession was arrested.
In cross examination PW2 said that PW1 did not tell him about registration number of motor cycle. He also said that they did not give the Appellant’s name at the police station.
PW3 No. 80056 Sergeant James Mokobi police officer from DCI said he had been on secondment to Safaricom based at Kisumu for six years. He said he receives formal request orders and court orders to process the request and sent results to officers and when called upon we appear in court to produce the document.
He there was a request from DCI Kisii South for call data for IMEI No. 358550086720960 which they processed on 2.10.2019. That the call data it related to calls from 18.9.2019 to 1.10.2019. He produced the data and certificate for electronic evidence PMFI 3.
He said that on 18.9.2019 the number in IMEI was 0707783462. It belongs to Damaris Ogega ID No. 30518182. She was walking on that day. That on 25.9.2019 her last communication was on 23.59 hours. Another sim card used was 0758135454 and it belongs to Peter Nyauma. His identity card is number 34358514.
That on 29.9.2019 another card was inserted at 11.24hours. it is number 0722363139 and it belonged to Benard Ogembo ID No. 22839081. He used it from 29.9.2019 to 1.10.2019 at 22.54hours. PW3 produced Safaricom data as Pexh 4 and Pexh 3.
In cross-examination PW3 said that he was a police officer based at Safaricom. He said he was Safaricom liaison officer. He said he did not know whether the case was reported. He also did not know whether those who used numbers in that phone are in court. He said he did not know the Appellant’s name.
In re-examination PW3 said that at 11.22.59 the phone was used for the last time. It shows the sim card in use.
PW4 No. 101313 PC Gilbert Chisindai testified that he was initially based at DCI Kisii South and on the night of 25.9.2019 a report was made at Gesonso police station by Damaris Ogega who was in company of her father David Ogega. It was reported that she was travelling from Nakuru to her home in Suneka. She boarded boda boda at Kisii smart line stage to Suneka. She boarded boda boda and passed through petrol station on reaching Riamasagara junction the boda boda rider diverted to a route he indicated he wanted to hand over vegetables to his wife. That a few metres from the junction he stopped the motorcycle and started searching the complainant. That the complainant wanted to call her father but the accused removed a knife and threatened to kill her if she screams. That she was instructed to switch off the phone and she did. PW4 said that the accused grabbed the complainant on the neck, took her bag which contained personal items including Kshs. 2,500 and spread the them on the road. That he took the money and asked her to open the phone and she was asked to give out pin but there was no money in the mpesa account. That the accused grabbed the complainant and threw her down and raped. PW4 said that after the ordeal the accused ran away taking the money and the phone and left at the Complainant at the scene. The complainant regained her senses and started walking towards Suneka where a good Samaritan who was using motor cycle took her to Suneka where her father was. That they went back to Gesonso police station and police accompanied then back to the scene to collect her items. The following day the complainant was treated at Kisii Teaching and Referral Hospital and PW4 was tasked to investigate. Je recorded statements of witnesses and the Complainant gave him receipts of her phone dated 16.10.2018 Pexh 5. That they sent a letter to Safaricom dated 1.10.2019 and they received the result showing the person in possession of phone on 2.10.2019. That it came out that phone went to Peter Nyauma of ID No. 34358514 phone number 0758135454 immediately the line was removed on 29.9.2023 and it went to Benard Ogembo of identity card number 022839081 and phone number 0722363139. PW4 said that could not trace number 0758135454. We arrested Benard Ogembo and found complainant’s phone. We made inventory on 5.10.2019 for the recovery Benard Ogembo signed it. On investigations Benard Ogembo told them he was given the phone by the accused Peter Aberi as he used to carry him from school to home. PW4 said that Benard Ogembo was a teacher at Jogoo. He led them to the accused’s home and they found him with motor cycle number KMEP 730C red in colour (seen) Pexh 7. That they called the complainant and identification parade was conducted by Chief Inspector David Terer (now retired) and the complainant was able to identify the suspect. PW4 produced identification parade form Pexh 8. He also visited the scene and recovered complainant’s purse which he produced as Pexh 9. That a letter to National Registration Bureau was done and it was established that Peter Nyauma the accused herein had used his father’s identity card to register a number. That they also confirmed the details of Benard Ogembo of identity number 22839081 as well as the complainant’s identity as 30518182. The letter from Registrar of Persons to that effect was produced as Pexh 10.
PW4 also produced a copy of print out from Safaricom Pexh 11 and letter from DCI dated 13.7.2023 which confirmed that phone make Nokia had serial number 358550080727961 and it matched serial number provided by the complainant. It was produced as Pexh 2. PW4 issued P3 form and it was duly filled at Kisii Teaching and Referral Hospital. PW4 arrested the accused and charged him. He said they did not recover the knife used to threaten the complainant.
In cross examination, PW4 said that the complainant claimed she was robbed and raped by boda boda rider but she did not give the registration number or the name of the rider. He said they did not recover anything belonging to the complainant in the Appellant’s possession. He said that Benard Ogembo told them that the Appellant gave him the phone and he led them to the Appellant’s home. He said the Appellant had switched off his phone. He said the Appellant used the phone first before giving it to Benard Ogembo who was his friend. The Investigating Officer said that they found the Appellant along the way next to stage and he wanted to escape but was arrested. He said that the complainant was able to identify the Appellant. PW4 said he did not participate in parade but the wife and mother to the Appellant were present during parade. PW4 said that there are different styles for identification parade and it could be walking style, voice or height. He said the Appellant was identified through speech and physique and he did not raise any objection. He said that the Complainant did not disown her statement. PW4 said the Appellant used trick to take the Complainant from the main road and ambushed her.
PW4 said that the parade started at around 17.00hours and ended at 5.00pm. He said Peter Nyauma was not in court as he was deceased person.
PW5 Daniel Nyameino Senior Clinical Officer at Kisii Teaching and Referral Hospital testified that on 27.9.2019 he examined a lady referred from DCI Kisii South. That she went with black torn inner pant on the right side and she gave history of rape on 25.9.2019 at 23.30 hours. PW5 examined her and perused post rape care form dated 26.9.2019 which indicated that there was sign of penetration. High vaginal swab was taken and it revealed several epithelial cells. These are cells which came out of friction. She was given medication to prevent HIV transmission. That from the history, sign of penetration sex and several severe epithelial cells points toward, possible rape. PW5 produced P3 form Pexh 1. PRC form Pexh 2 and clinical referral form Pexh 3 and clinical appointment card Pexh 4
In cross examination PW5 said that she claimed that she was raped by a person she can identify. That the Complainant did not indicate she was raped by an unknown boda boda rider. PW5 also said he did not examine the Appellant. He said the Complainant’s inner wear was torn and there was evidence of rape.
Upon close of prosecution case the Appellant was placed on his defense and he gave sworn statement and said that he came from Getare and he was arrested on 5.10.2019 at 6.45pm at his hotel. He said that police officers went and asked for Peter Nyauma and he told them he did not know him. That the police officers asked him to accompany them to police station. That they proceeded to the police station and the he tracker showed that Peter was at Ekerenyo. That they proceeded there and later police officers told him he was responsible. At Gesonso police station he was booked over the weekend and on Saturday the officer told him that his motor cycle was involved in the incident. He called his wife to avail motor cycle and it was availed. That Benard was found with complainant’s phone and he was made a witness. The Appellant said he was told he had a case. He said that the person who was found with phone was told to bring Kshs. 100,000. That he was also asked for Kshs. 100,000 but he refused to give. The Appellant said he was told to await identification parade which was conducted but the Complainant was not able to identify him. That they were told to talk and walk. That they said in loud voice “Habari yako” but she was not able to recognize and voice. That it is when he was told to walk that she then identified him. The Appellant said the identification was erroneous.
The Appellant further said that they were presented before court and the person who was found with phone was released. He said he was charged on 7th and he had never seen the person who claimed that he gave him the phone. The Appellant said he did not know why he was prosecuted. He said that Peter Nyauma never came to court. He said he never committed any offence and the allegations against him are false. The Appellant said he is hardworking man with a family. He also said that the arresting officers never came to testify and the officer who was in charge of parade did not testify.
In cross examination by the Prosecuting Counsel the Appellant said the Complainant did not recognize him and that is why identification parade was conducted.
The appeal herein was canvassed by way of written submissions. The Appellant’s submissions are dated 20th December 2024
The Respondent’s submissions are dated 25th September 2024.
Analysis and determination
This being a first appeal, the duty of this Court has re-evaluate and reconsidered the entire evidence on record with a view to arriving at an independent conclusion, bearing in mind that I neither saw nor heard the witnesses testify, and having given due allowance for that disadvantage.
The above mandate was set in the case of Mark Oiruri Mose vs. R (2013) eKLR where it was held thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” ( see Okeno Vs Republic)
The Appellant raised several grounds which will form the issues for determination and which may be condensed into the following broad issues:
1. Whether the prosecution proved its case beyond reasonable doubt;
2. Whether the identification of the Appellant was free from error;
3. Whether the doctrine of recent possession was properly applied;
4. Whether investigations were adequate;
5. Whether the Appellant’s defence was properly considered; and
6. Whether the sentence imposed was lawful and appropriate.
On whether the prosecution proved its case beyond reasonable doubt, the ingredients of robbery with violence under Section 296(2) of the Penal Code are satisfied if any one of the following is proved:
a. That the offender was armed with a dangerous weapon;
b. That the offender was in the company of others; or
c. That the offender used or threatened to use actual violence.
PW1 testified that the assailant was armed with a knife and threatened her with violence and her property was stolen. These facts were consistent and corroborated. The failure to recover the knife is not fatal, as credible testimony is sufficient. This court finds that the offence of robbery with violence was proved.
On whether the offence of rape was proved, the prosecution must establish penetration, lack of consent, and identity of the perpetrator. PW5’s medical evidence confirmed penetration. PW1’s testimony established that the act was forced and under threat. The only issue in dispute is whether the assailant was identified.
The incident herein occurred at night and involved a single identifying witness. The Court is alive to the dangers attendant to such identification. The trial Magistrate while considering whether the assailant had been properly identified in consideration that the offence occurred at night said:
“it is clear that Benard Ogembo was found with the phone. It is quite surprising that the said witness was never called by prosecution to give evidence to assist the court in connecting the dots. It was alleged that phone No. 0758135454 which was initially used belonged to Peter Nyauma and according to the I/O the accused used her father’s ID to register this number. This came from PW4 P.C Gilbert Chesindai and it is allegation without proof. At least Peter Nyauma ought to have been traced to record statement and called to testify. How the investigators handled the process of recovery of the phone and linkage leaves a lot to be desired. The phone which was recovered was crucial evidence to be handled in the manner they did. Though the phone was recovered, it did not provide necessary linkage.”
However, PW1 testified that she spent considerable time with the assailant from the time he approached her next to Smart Line Offices and inquired if she was going to Suneka. That she interacted with him during the robbery when he even switched on the phone to check her M-pesa balance and she was able to see him using light from the phone. When the Appellant was arrested one week later and the Complainant’s phone recovered an identification parade was conducted and the Appellant was picked out as the assailant.
As indicated by the Trial Magistrate the person who was found with the phone did not testify and the person who was registered as owner of the sim card used in the Complainant’s phone immediately after the robbery was also not availed to testify. PW4 said that Benard Ogembo was a teacher at Jogoo and it was possible to trace him to testify or even better charge him as co-accused to the Appellant. PW4 also said that the Appellant used his father;s identity card to register his sim card. There was nothing to prove that Peter Aberi Omurwa was the son of Peter Mwembi Nyauma.
The Identification Parade Officer Chief Inspector Terer did not attend court to testify and he was said to have since retired and PW4 produced the parade form. The said parade form indicates that the Appellant was identified by talking and physique. It was not indicated what was peculiar in his walking that made the Complainant identify him considering that he was riding a motor cycle and it was at night. This court finds identification parade flaws were fatal. In consideration of the serious doubt raised by Trial Magistrate and in consideration that offence was committed at night this Court is not satisfied that identification was free from mistake and therefore required and was not sufficiently reliable to meet the standard of beyond reasonable doubt
The complainant’s phone was positively identified by serial number and receipt. Safaricom data showed usage shortly after the robbery. The phone was recovered from a third party who led police to the Appellant as the source. The person who led police to the Appellant did not testify and give reasonable explanation as to how he came by the stolen phone and the allegations that he gave Benard Ogembo the phone is hearsay and cannot sustain a conviction. The Appellant said in his defense that he did not give Benard Ogembo the phone. The doctrine of recent possession would therefore be properly invoked as against Benard Ogembo if he was arrested and charged.
The Appellant complained that there were investigative gaps in the prosecution evidence including failure to recover the knife and failure to call some crucial witnesses and this court finds that failure to call particularly Benard Ogembo was fatal to the prosecution case as the failure raised a serious suspicion as to it was indeed true that the said witness received the stolen phone from the Appellant or he was the assailant. The evidence on record was insufficient to sustain the convictions.
The trial court only considered the Appellant’s admission that he attended an identification parade and not defense that he did not commit the offence. The Appellant gave a sworn defence denying the offences. He challenged the identification parade, alleged extortion attempts by police, and stated that he was wrongly implicated. He asserted that the complainant failed to identify him and that the phone was recovered from another person who was made a prosecution witness. In consideration that the person whose sim card was used in the Complainant’s phone immediately after the robbery was not traced during investigation, and considering that the person in whose possession the phone was recovered after one week did not testify this court finds that the Appellant’s defense ought to have been scrutinized more and given its due weight in comparison with the prosecution evidence.
In conclusion having re-evaluated the entire record, this court finds that the prosecution did not prove its case beyond reasonable doubt. The convictions were not safe and the sentences are unlawful.
In the circumstances the appeal herein has merit and the same is allowed. The convictions on both counts are quashed and sentences set aside.
The Appellant to be set at liberty unless lawfully detained. Right of Appeal within 14 days explained.
DATED, SIGNED AND DELIVERED AT KISII THIS 17TH DAY OF DECEMBER 2025.
Particulars of the offence were that on the night of 25th September 2019 at Riamasagara village within Kisii South Sub-County in Kisii County being armed with a knife robbed D.N.O of one mobile phone make Nokia 6.1 S/No 358550080727961 and cash Kshs. 2500/= all valued at Kshs. 30,000/= and immediately before the time of such robbery threatened to use actual violence against the said D.N.O.
In count 2 the Appellant was charged with the offence of rape contrary to Section 3 of the Sexual Offences Act No. 3 of 2006
The particulars were that on the night of 25th September 2025 at Riamasagara village within Kisii South Sub-County in Kisii County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of D. N O. by use of threats and without her consent.
In the alternative the Appellant was charged with the offence od indecent act with an adult contrary to Section 11A of the Sexual Offences Act No. 3 of 2006.
Upon consideration of the evidence of 5 prosecution witnesses and weighing the same against the Appellant’s sworn statement the Trial Magistrate found the Appellant guilty and convicted him in both counts. He was subsequently sentenced to serve 30 years imprisonment in count 1 and 10 years imprisonment in count 2 to run concurrently.
The Appellant was aggrieved with the conviction and sentence and he preferred the appeal herein vide Memorandum of Appeal filed on 9t February 2024 on the following grounds:
1. THAT the Learned Trial Magistrate erred in both law and facts when seemingly based the conviction on purported allegation yet the same was extremely doubtful
2. THAT the Learned Trial Magistrate erred both in law and facts when maliciously based the conviction on purported allegations of identification by recognition and failed to consider that the evidence in the first report did not give description of the attacker to the report that was made at the police station.
3. THAT the Learned Trial Magistrate erred both in law and facts when seemingly ignored the Appellant’s defense without reasons yet the same was remarkedly comprehensive in casting doubt to the strength of the prosecution’s case.
4. THAT the Learned Trial Magistrate erred both in law and facts when failed to note that no investigations were carried out by the prosecution, and failed in law by not analyzing the whole prosecution evidence as adduced thus occasioning a miscarriage of justice.
5. THAT the Learned Trial Magistrate erred both in law and facts by basing his conviction on evidence that was insufficient that could have supported the conviction based among the Appellant while the evidence in support of the same was not watertight and could not be used as a basis for a safe conviction.
6. THAT the Learned Trial Magistrate erred both in law and facts in passing the judgment, on matters not proved before him.
7. THAT the Learned Trial Magistrate erred both in law and facts to convict the Appellant without considering that the prosecution case was not proved beyond reasonable doubts to warrant conviction and sentence against the Appellant.
REASONS WHEREFORE the Appellant prayed that:
a. The appeal be allowed, conviction be quashed and sentence set aside
b. The Appellant be set free
The Prosecution’s case was that PW1 Damaris Nyanchama the Complainant alighted from a matatu at 10.00pm on 25.9.2019 having travelled from Nakuru towards Rioma. That the accused who was a rider approached her and asked whether she was going to Suneka. That when she confirmed they proceeded to petrol station and he refilled. The rider asked for fare and she gave Kshs. 100. That as they proceeded towards Suneka the rider told her he was dropping vegetables at his home. That when she asked him to drop her, he told her it was not far. That as they proceeded, she took her phone to call my dad the rider stopped and searched her pockets. That she felt something cold and she saw the rider had a knife. That the rider took her phone and everything she had in her bag and switched off her phone while demanding for money. He managed to get Kshs. 2,500 from my bag and also took ATM card and credit card and demanded the pin. He switched on my phone and asked for Mpesa pin and checked the balance but there was no money. He left it and raped the Complainant in a bush at Riamasagara. That the Complainant asked whether he had condom. The Complainant said she was able to see him using light from the phone. That after the act the rider offered to drop her but he refused to release her phone. He dropped her on the road and she walked along the road where she met another rider who took her to where my dad was. That they proceeded home and reported at Gesonso police station. That they went back to the scene and found ATM card, pant and other documents but did not find her phone. PW1 proceeded to hospital and she was treated and P3 form dated 29.9.2019duly filled. PW1 said that she booked her report and recorded her statement. That after one week her phone was traced and the Appellant was arrested and she was able to identify him. PW1 identified her Nokia C1 phone in court as PMFI 2. She said she also lost Kshs. 2,500. PW1 identified the Appellant in court as the one who robbed and raped.
In cross examination PW1 said that she arrived in Kisii at 10.00pm and found the Appellant next to smart line office. She said she did not take note of motor cycle number but only identified the rider then. She said she did not know the rider before. She said they did not reach where the rider’s wife was and he did not drop any vegetables. That instead he turned against her and took her phone which was later recovered. PW1 said she reported a case of rider who offered to take me home and that it was the Appellant. That he raped her without protection. She said the Appellant was found in possession of her phone. She said she did not know Benard. Or others who used her phone. She said that she was able to identify the Appellant in identification parade. She said it is not easy to have a person with exact similarities. She said she saw the Appellant at the time of act and marked his face. PW1 said she could not tell what was the Appellant’s position in parade.
PW2 David Ogega. Testified that he came from Suneka and he was a retired nursing officer.
That on 25.9.2019 at 11.00pm he was waiting for his daughter who was coming from Nakuru. He said the daughter is called Damaris Nyanchama. That by 10.30pm she told him they were approaching Kisii and he left home for Suneka. That they were in touch but at 11.00pm her phone went off. Later she appeared on motor cycle and he was told to pay. PW2’s daughter told him that a rider robbed her and she was raped and her phone and Kshs. 2,500 was stolen. PW2 took the Complainant to Gesonso police station and the following day they recorded statements and proceeded to hospital. He said the Complainant’s phone was tracked and the person in possession was arrested.
In cross examination PW2 said that PW1 did not tell him about registration number of motor cycle. He also said that they did not give the Appellant’s name at the police station.
PW3 No. 80056 Sergeant James Mokobi police officer from DCI said he had been on secondment to Safaricom based at Kisumu for six years. He said he receives formal request orders and court orders to process the request and sent results to officers and when called upon we appear in court to produce the document.
He there was a request from DCI Kisii South for call data for IMEI No. 358550086720960 which they processed on 2.10.2019. That the call data it related to calls from 18.9.2019 to 1.10.2019. He produced the data and certificate for electronic evidence PMFI 3.
He said that on 18.9.2019 the number in IMEI was 0707783462. It belongs to Damaris Ogega ID No. 30518182. She was walking on that day. That on 25.9.2019 her last communication was on 23.59 hours. Another sim card used was 0758135454 and it belongs to Peter Nyauma. His identity card is number 34358514.
That on 29.9.2019 another card was inserted at 11.24hours. it is number 0722363139 and it belonged to Benard Ogembo ID No. 22839081. He used it from 29.9.2019 to 1.10.2019 at 22.54hours. PW3 produced Safaricom data as Pexh 4 and Pexh 3.
In cross-examination PW3 said that he was a police officer based at Safaricom. He said he was Safaricom liaison officer. He said he did not know whether the case was reported. He also did not know whether those who used numbers in that phone are in court. He said he did not know the Appellant’s name.
In re-examination PW3 said that at 11.22.59 the phone was used for the last time. It shows the sim card in use.
PW4 No. 101313 PC Gilbert Chisindai testified that he was initially based at DCI Kisii South and on the night of 25.9.2019 a report was made at Gesonso police station by Damaris Ogega who was in company of her father David Ogega. It was reported that she was travelling from Nakuru to her home in Suneka. She boarded boda boda at Kisii smart line stage to Suneka. She boarded boda boda and passed through petrol station on reaching Riamasagara junction the boda boda rider diverted to a route he indicated he wanted to hand over vegetables to his wife. That a few metres from the junction he stopped the motorcycle and started searching the complainant. That the complainant wanted to call her father but the accused removed a knife and threatened to kill her if she screams. That she was instructed to switch off the phone and she did. PW4 said that the accused grabbed the complainant on the neck, took her bag which contained personal items including Kshs. 2,500 and spread the them on the road. That he took the money and asked her to open the phone and she was asked to give out pin but there was no money in the mpesa account. That the accused grabbed the complainant and threw her down and raped. PW4 said that after the ordeal the accused ran away taking the money and the phone and left at the Complainant at the scene. The complainant regained her senses and started walking towards Suneka where a good Samaritan who was using motor cycle took her to Suneka where her father was. That they went back to Gesonso police station and police accompanied then back to the scene to collect her items. The following day the complainant was treated at Kisii Teaching and Referral Hospital and PW4 was tasked to investigate. Je recorded statements of witnesses and the Complainant gave him receipts of her phone dated 16.10.2018 Pexh 5. That they sent a letter to Safaricom dated 1.10.2019 and they received the result showing the person in possession of phone on 2.10.2019. That it came out that phone went to Peter Nyauma of ID No. 34358514 phone number 0758135454 immediately the line was removed on 29.9.2023 and it went to Benard Ogembo of identity card number 022839081 and phone number 0722363139. PW4 said that could not trace number 0758135454. We arrested Benard Ogembo and found complainant’s phone. We made inventory on 5.10.2019 for the recovery Benard Ogembo signed it. On investigations Benard Ogembo told them he was given the phone by the accused Peter Aberi as he used to carry him from school to home. PW4 said that Benard Ogembo was a teacher at Jogoo. He led them to the accused’s home and they found him with motor cycle number KMEP 730C red in colour (seen) Pexh 7. That they called the complainant and identification parade was conducted by Chief Inspector David Terer (now retired) and the complainant was able to identify the suspect. PW4 produced identification parade form Pexh 8. He also visited the scene and recovered complainant’s purse which he produced as Pexh 9. That a letter to National Registration Bureau was done and it was established that Peter Nyauma the accused herein had used his father’s identity card to register a number. That they also confirmed the details of Benard Ogembo of identity number 22839081 as well as the complainant’s identity as 30518182. The letter from Registrar of Persons to that effect was produced as Pexh 10.
PW4 also produced a copy of print out from Safaricom Pexh 11 and letter from DCI dated 13.7.2023 which confirmed that phone make Nokia had serial number 358550080727961 and it matched serial number provided by the complainant. It was produced as Pexh 2. PW4 issued P3 form and it was duly filled at Kisii Teaching and Referral Hospital. PW4 arrested the accused and charged him. He said they did not recover the knife used to threaten the complainant.
In cross examination, PW4 said that the complainant claimed she was robbed and raped by boda boda rider but she did not give the registration number or the name of the rider. He said they did not recover anything belonging to the complainant in the Appellant’s possession. He said that Benard Ogembo told them that the Appellant gave him the phone and he led them to the Appellant’s home. He said the Appellant had switched off his phone. He said the Appellant used the phone first before giving it to Benard Ogembo who was his friend. The Investigating Officer said that they found the Appellant along the way next to stage and he wanted to escape but was arrested. He said that the complainant was able to identify the Appellant. PW4 said he did not participate in parade but the wife and mother to the Appellant were present during parade. PW4 said that there are different styles for identification parade and it could be walking style, voice or height. He said the Appellant was identified through speech and physique and he did not raise any objection. He said that the Complainant did not disown her statement. PW4 said the Appellant used trick to take the Complainant from the main road and ambushed her.
PW4 said that the parade started at around 17.00hours and ended at 5.00pm. He said Peter Nyauma was not in court as he was deceased person.
PW5 Daniel Nyameino Senior Clinical Officer at Kisii Teaching and Referral Hospital testified that on 27.9.2019 he examined a lady referred from DCI Kisii South. That she went with black torn inner pant on the right side and she gave history of rape on 25.9.2019 at 23.30 hours. PW5 examined her and perused post rape care form dated 26.9.2019 which indicated that there was sign of penetration. High vaginal swab was taken and it revealed several epithelial cells. These are cells which came out of friction. She was given medication to prevent HIV transmission. That from the history, sign of penetration sex and several severe epithelial cells points toward, possible rape. PW5 produced P3 form Pexh 1. PRC form Pexh 2 and clinical referral form Pexh 3 and clinical appointment card Pexh 4
In cross examination PW5 said that she claimed that she was raped by a person she can identify. That the Complainant did not indicate she was raped by an unknown boda boda rider. PW5 also said he did not examine the Appellant. He said the Complainant’s inner wear was torn and there was evidence of rape.
Upon close of prosecution case the Appellant was placed on his defense and he gave sworn statement and said that he came from Getare and he was arrested on 5.10.2019 at 6.45pm at his hotel. He said that police officers went and asked for Peter Nyauma and he told them he did not know him. That the police officers asked him to accompany them to police station. That they proceeded to the police station and the he tracker showed that Peter was at Ekerenyo. That they proceeded there and later police officers told him he was responsible. At Gesonso police station he was booked over the weekend and on Saturday the officer told him that his motor cycle was involved in the incident. He called his wife to avail motor cycle and it was availed. That Benard was found with complainant’s phone and he was made a witness. The Appellant said he was told he had a case. He said that the person who was found with phone was told to bring Kshs. 100,000. That he was also asked for Kshs. 100,000 but he refused to give. The Appellant said he was told to await identification parade which was conducted but the Complainant was not able to identify him. That they were told to talk and walk. That they said in loud voice “Habari yako” but she was not able to recognize and voice. That it is when he was told to walk that she then identified him. The Appellant said the identification was erroneous.
The Appellant further said that they were presented before court and the person who was found with phone was released. He said he was charged on 7th and he had never seen the person who claimed that he gave him the phone. The Appellant said he did not know why he was prosecuted. He said that Peter Nyauma never came to court. He said he never committed any offence and the allegations against him are false. The Appellant said he is hardworking man with a family. He also said that the arresting officers never came to testify and the officer who was in charge of parade did not testify.
In cross examination by the Prosecuting Counsel the Appellant said the Complainant did not recognize him and that is why identification parade was conducted.
The appeal herein was canvassed by way of written submissions. The Appellant’s submissions are dated 20th December 2024
The Respondent’s submissions are dated 25th September 2024.
Analysis and determination
This being a first appeal, the duty of this Court has re-evaluate and reconsidered the entire evidence on record with a view to arriving at an independent conclusion, bearing in mind that I neither saw nor heard the witnesses testify, and having given due allowance for that disadvantage.
The above mandate was set in the case of Mark Oiruri Mose vs. R (2013) eKLR where it was held thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” ( see Okeno Vs Republic)
The Appellant raised several grounds which will form the issues for determination and which may be condensed into the following broad issues:
1. Whether the prosecution proved its case beyond reasonable doubt;
2. Whether the identification of the Appellant was free from error;
3. Whether the doctrine of recent possession was properly applied;
4. Whether investigations were adequate;
5. Whether the Appellant’s defence was properly considered; and
6. Whether the sentence imposed was lawful and appropriate.
On whether the prosecution proved its case beyond reasonable doubt, the ingredients of robbery with violence under Section 296(2) of the Penal Code are satisfied if any one of the following is proved:
a. That the offender was armed with a dangerous weapon;
b. That the offender was in the company of others; or
c. That the offender used or threatened to use actual violence.
PW1 testified that the assailant was armed with a knife and threatened her with violence and her property was stolen. These facts were consistent and corroborated. The failure to recover the knife is not fatal, as credible testimony is sufficient. This court finds that the offence of robbery with violence was proved.
On whether the offence of rape was proved, the prosecution must establish penetration, lack of consent, and identity of the perpetrator. PW5’s medical evidence confirmed penetration. PW1’s testimony established that the act was forced and under threat. The only issue in dispute is whether the assailant was identified.
The incident herein occurred at night and involved a single identifying witness. The Court is alive to the dangers attendant to such identification. The trial Magistrate while considering whether the assailant had been properly identified in consideration that the offence occurred at night said:
“it is clear that Benard Ogembo was found with the phone. It is quite surprising that the said witness was never called by prosecution to give evidence to assist the court in connecting the dots. It was alleged that phone No. 0758135454 which was initially used belonged to Peter Nyauma and according to the I/O the accused used her father’s ID to register this number. This came from PW4 P.C Gilbert Chesindai and it is allegation without proof. At least Peter Nyauma ought to have been traced to record statement and called to testify. How the investigators handled the process of recovery of the phone and linkage leaves a lot to be desired. The phone which was recovered was crucial evidence to be handled in the manner they did. Though the phone was recovered, it did not provide necessary linkage.”
However, PW1 testified that she spent considerable time with the assailant from the time he approached her next to Smart Line Offices and inquired if she was going to Suneka. That she interacted with him during the robbery when he even switched on the phone to check her M-pesa balance and she was able to see him using light from the phone. When the Appellant was arrested one week later and the Complainant’s phone recovered an identification parade was conducted and the Appellant was picked out as the assailant.
As indicated by the Trial Magistrate the person who was found with the phone did not testify and the person who was registered as owner of the sim card used in the Complainant’s phone immediately after the robbery was also not availed to testify. PW4 said that Benard Ogembo was a teacher at Jogoo and it was possible to trace him to testify or even better charge him as co-accused to the Appellant. PW4 also said that the Appellant used his father;s identity card to register his sim card. There was nothing to prove that Peter Aberi Omurwa was the son of Peter Mwembi Nyauma.
The Identification Parade Officer Chief Inspector Terer did not attend court to testify and he was said to have since retired and PW4 produced the parade form. The said parade form indicates that the Appellant was identified by talking and physique. It was not indicated what was peculiar in his walking that made the Complainant identify him considering that he was riding a motor cycle and it was at night. This court finds identification parade flaws were fatal. In consideration of the serious doubt raised by Trial Magistrate and in consideration that offence was committed at night this Court is not satisfied that identification was free from mistake and therefore required and was not sufficiently reliable to meet the standard of beyond reasonable doubt
The complainant’s phone was positively identified by serial number and receipt. Safaricom data showed usage shortly after the robbery. The phone was recovered from a third party who led police to the Appellant as the source. The person who led police to the Appellant did not testify and give reasonable explanation as to how he came by the stolen phone and the allegations that he gave Benard Ogembo the phone is hearsay and cannot sustain a conviction. The Appellant said in his defense that he did not give Benard Ogembo the phone. The doctrine of recent possession would therefore be properly invoked as against Benard Ogembo if he was arrested and charged.
The Appellant complained that there were investigative gaps in the prosecution evidence including failure to recover the knife and failure to call some crucial witnesses and this court finds that failure to call particularly Benard Ogembo was fatal to the prosecution case as the failure raised a serious suspicion as to it was indeed true that the said witness received the stolen phone from the Appellant or he was the assailant. The evidence on record was insufficient to sustain the convictions.
The trial court only considered the Appellant’s admission that he attended an identification parade and not defense that he did not commit the offence. The Appellant gave a sworn defence denying the offences. He challenged the identification parade, alleged extortion attempts by police, and stated that he was wrongly implicated. He asserted that the complainant failed to identify him and that the phone was recovered from another person who was made a prosecution witness. In consideration that the person whose sim card was used in the Complainant’s phone immediately after the robbery was not traced during investigation, and considering that the person in whose possession the phone was recovered after one week did not testify this court finds that the Appellant’s defense ought to have been scrutinized more and given its due weight in comparison with the prosecution evidence.
In conclusion having re-evaluated the entire record, this court finds that the prosecution did not prove its case beyond reasonable doubt. The convictions were not safe and the sentences are unlawful.
In the circumstances the appeal herein has merit and the same is allowed. The convictions on both counts are quashed and sentences set aside.
The Appellant to be set at liberty unless lawfully detained. Right of Appeal within 14 days explained.
DATED, SIGNED AND DELIVERED AT KISII THIS 17TH DAY OF DECEMBER 2025.